Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section: (a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation; (b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower; (c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower; (d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base; (e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount; (f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and (g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 5 contracts
Sources: Senior Secured Revolving Credit Agreement (Stellus Capital Investment Corp), Senior Secured Revolving Credit Agreement (Stellus Capital Investment Corp), Senior Secured Revolving Credit Agreement (Stellus Capital Investment Corp)
Fundamental Changes. The Borrower will notnot merge into or consolidate or amalgamate with any other Person, nor will it or permit any other Person to merge into or consolidate or amalgamate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of the Subsidiary Guarantors toassets of the Borrower and its Subsidiaries, enter into any transaction of merger or consolidation or amalgamationtaken as a whole, or liquidate, wind up liquidate or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Persondissolve, except for purchases that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(a) the Borrower may merge, consolidate or acquisitions amalgamate into another Person; provided that the Borrower shall be the continuing or surviving Person; and
(b) the Borrower may merge, consolidate or amalgamate into or sell, transfer, lease or otherwise dispose of Investments and other all or substantially all the assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries taken as a whole to another Person; provided that (i) the resulting, surviving or transferee Person (the “Successor Borrower”) is a corporation, limited liability company or partnership organized and not validly existing under the laws of Bermuda, England and Wales or the United States of America or any state thereof or the District of Columbia, (ii) the Successor Borrower executes, prior to or contemporaneously with the consummation of such transaction, such agreements, if any, as are in violation the reasonable opinion of the terms and conditions Administrative Agent, necessary to evidence the assumption by the Successor Borrower of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any liability for all of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities obligations of the Borrower hereunder and its Subsidiaries) the other Loan Documents and (y) subject to expressly assumes all of the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor obligations of the Borrower may be merged or consolidated with or into under the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary GuarantorLoan Documents, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(ciii) the capital stock of any Subsidiary of the Successor Borrower may shall cause to be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers delivered to the Administrative Agent a certificate and the Lenders such legal opinions (which may be from in-house counsel) as any of a Financial Officer to such effect and them may reasonably request in connection with the matters specified in the preceding clause (ii) either and (xiv) the amount by which Successor Borrower shall provide such information as each Lender or the Borrowing Base exceeds Administrative Agent reasonably requests in order to perform its “know your customer” due diligence with respect to the Covered Debt Amount immediately prior to such release is not diminished Successor Borrower, including a Beneficial Ownership Certification if the Successor Borrower qualifies as a result of such release or (y) “legal entity customer” under the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearBeneficial Ownership Regulation.
Appears in 4 contracts
Sources: Credit Agreement (IHS Markit Ltd.), Credit Agreement (IHS Markit Ltd.), Credit Agreement (IHS Markit Ltd.)
Fundamental Changes. The With respect to the Borrower will notor any Significant Subsidiary, nor will it permit any without the consent of the Subsidiary Guarantors to, Administrative Agent and the Required Lenders enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned all or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course substantially all of the day-to-day business activities consolidated assets of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
taken as a whole, except (a) for sales, leases or rentals of property or assets in the ordinary course of business, (b) that any consolidated Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower (provided that the Borrower shall be the continuing or surviving corporation) or with any other Subsidiary Guarantor; one or more Subsidiaries of the Borrower (provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly wholly-owned Subsidiary, the wholly-owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
), (bc) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly another wholly-owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
and (d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate be merged with any other Person so long as if (i) the Borrower is the continuing or surviving entity in such transaction and corporation, (ii) at immediately after giving effect to such merger, there shall exist no condition or event which constitutes an Event of Default or which, with the giving of notice or lapse of time thereof or both, would constitute an Event of Default, and (iii) all representations and warranties contained in Article III hereof are true and correct in all material respects (except for any such representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which representation shall be true and correct in all respects) on and as of the date of the consummation of such merger, and after giving effect thereto, no Default as though restated on and as of such date (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have occurred be true and correct in all material respects (except for any such representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which representation shall be continuing; and
(gtrue and correct in all respects) the Borrower and each as of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearearlier date).
Appears in 4 contracts
Sources: Credit Agreement (Northwest Natural Gas Co), Credit Agreement (Northwest Natural Gas Co), Credit Agreement (Northwest Natural Gas Co)
Fundamental Changes. The Borrower Company will not, nor and will it not permit any of the Subsidiary Guarantors to, enter merge into or amalgamate or consolidate with any transaction of merger or consolidation or amalgamationother Person, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business other Person to merge into or property fromamalgamate or consolidate with it, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions, ) all or any substantial part of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), but excluding (x) assets (other than Investments) sold or disposed of in liquidate or dissolve, except that, if at the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower time thereof and its Subsidiaries) immediately after giving effect thereto no Default shall have occurred and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Sectionbe continuing:
(a) any Subsidiary Guarantor of may merge with the Borrower may be merged or consolidated with or into Company in a transaction in which the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, Company is the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower[intentionally omitted;]
(c) the capital stock of any Subsidiary of the Borrower (other than a Subsidiary Guarantor) may be sold, transferred or otherwise disposed of to the Borrower or merge with any wholly owned Person (other than a Subsidiary Guarantor of or the BorrowerCompany) in a transaction in which the surviving entity is a Subsidiary;
(d) any Subsidiary Guarantor may merge with any Person in a transaction in which the Obligors surviving entity is a Subsidiary Guarantor or the Company, and the Company may sell, transfer or otherwise dispose of Investments (other than to merge with any Person in a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) transaction in which the Covered Debt Amount does not exceed surviving entity is the Borrowing BaseCompany;
(e) the Obligors Company and any Subsidiary may sell, transfer transfer, lease or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers its assets to the Administrative Agent Company, a certificate of a Financial Officer Subsidiary Guarantor or to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amountanother Subsidiary;
(f) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve if the Borrower may merge Company determines in good faith that such liquidation or consolidate with any other Person so long as (i) dissolution is in the Borrower best interests of the Company and is not materially disadvantageous to the continuing or surviving entity in such transaction and (ii) at holders of the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; andNotes;
(g) the Borrower Company and each of the any Subsidiary Guarantors may sell, leasetransfer, transfer lease or otherwise dispose of equipment (in one transaction or in a series of transactions) other property or assets that do not consist of Investments and properties so long as the Net Proceeds Amount with respect thereto is applied to a Debt Prepayment Application (including making an offer to prepay the Ratable Portion of the Notes in accordance with Section 8.9) or a Property Reinvestment Application within one year after such asset disposition (or with respect to cash proceeds received after such asset disposition is consummated, within one year after receipt of such cash proceeds); provided that the Net Proceeds Amount shall not be required to be applied to a Debt Prepayment Application or Property Reinvestment Application except to the extent that the aggregate amount net book value of the disposed assets giving rise to such Net Proceeds Amount, when combined with the aggregate net book value of all other assets disposed of and giving rise to Net Proceeds Amounts during the fiscal year in which such salesdisposition occurs, leasesexceeds 10% of the Company’s consolidated tangible assets as set forth on the Company’s most recently delivered audited financial statements, transfer and dispositions does not exceed $5,000,000 only to the extent of such excess; and
(h) any Person may merge with and into the Company, any Subsidiary Guarantor or any of its direct or indirect wholly-owned Subsidiaries in any fiscal yearan Acquisition.
Appears in 4 contracts
Sources: Multicurrency Note Purchase and Private Shelf Agreement (Idexx Laboratories Inc /De), Multi Currency Note Purchase and Private Shelf Agreement (Idexx Laboratories Inc /De), Multicurrency Note Purchase and Private Shelf Agreement (Idexx Laboratories Inc /De)
Fundamental Changes. The Borrower will notMerge into or consolidate with any other Person, nor will it or permit any of the Subsidiary Guarantors to, enter other Person to merge into any transaction of merger or consolidation or amalgamationconsolidate with it, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions, any part ) all or substantially all of its assetsassets (in each case, whether now owned or hereafter acquired), but excluding or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(ai) any Subsidiary Guarantor of the any Borrower may be merged or consolidated with or merge into such Borrower in a transaction in which such Borrower is the Borrower surviving entity, (ii) any Subsidiary of Holdings may merge into Holdings or any other Subsidiary Guarantor; of Holdings (provided that (A) if Kmart Corp. is a party to such merger, such merger shall be with Holdings, Kmart or a direct Subsidiary of Kmart Corp. and Kmart Corp. shall be the continuing or surviving entity, (B) if any such transaction shall be between a Subsidiary Guarantor and is a wholly owned Subsidiary Guarantorparty to such merger (other than with a Borrower or Holdings), the wholly owned such Subsidiary Guarantor shall be the continuing or surviving corporation;
entity or the continuing or surviving entity shall become a Subsidiary Guarantor and (bC) if SRAC is a party to such merger, then Sears shall comply with the requirements of Section 6.01(d)), (iii) any Subsidiary Guarantor of Holdings other than the Borrower Borrowers may sell, leasetransfer, transfer lease or otherwise dispose of any or all of its assets to any Borrower, to Holdings or to a Subsidiary of Holdings (upon voluntary liquidation provided that if such sale or otherwise) to transfer includes Collateral and the transferee is not the Borrower or any wholly owned Holdings, the transferee shall be a Subsidiary Guarantor of the Borrower;
Guarantor), (civ) the capital stock of any Subsidiary of Holdings other than the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors Borrowers may sell, transfer transfer, lease or otherwise dispose of Investments its assets to a Person that is not a Subsidiary through transactions which are undertaken in the ordinary course of its business or determined by Holdings or the Borrowers in good faith to be in the best interests of Holdings, the Borrowers and their Subsidiaries, (v) any Subsidiary of Holdings other than to a Financing Subsidiarythe Borrowers (except, in the case of SRAC, as provided in Section 6.01(d)) so long as after giving effect to such sale, transfer may liquidate or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base dissolve if Holdings and the Borrower delivers Borrowers determine in good faith that such liquidation or dissolution is in the best interests of Holdings, the Borrowers and their Subsidiaries and is not materially disadvantageous to the Administrative Agent a certificate of a Financial Officer to such effect Lenders, and (iivi) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount Holdings or any Subsidiary of Holdings may merge with a Person that is not a Subsidiary of Holdings immediately prior to such release is not diminished merger if, in the case of any merger involving Holdings, a Borrower or a Subsidiary Guarantor, Holdings, such Borrower or such Subsidiary Guarantor, as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower applicable, is the continuing or surviving entity or, in such transaction and (ii) at the time thereof and after giving effect theretocase of any merger involving a Subsidiary Guarantor, no Default the continuing or surviving entity shall have occurred or be continuing; and
(g) the Borrower and each of the become a Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 Guarantor in any fiscal yearaccordance with Section 6.01(i)(ii).
Appears in 4 contracts
Sources: Credit Agreement (Sears Holdings Corp), Credit Agreement (Sears Holdings Corp), Credit Agreement (Sears Holdings Corp)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including, without limitation, Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than including Cash and Cash Equivalents but excluding Portfolio Investments) sold or disposed of in the ordinary course of business of the Borrower and its Subsidiaries (other than the Financing Subsidiaries) (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries (other than the Financing Subsidiaries)) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) any Subsidiary of the Borrower may be liquidated or dissolved; provided that (i) in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower and (ii) the Borrower determines in good faith that such liquidation is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(d) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(de) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base;
(ef) the Obligors may sell, transfer or otherwise dispose of Investments Portfolio Investments, Cash and Cash Equivalents to a Financing Subsidiary so long as (i) prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and no Default exists and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect effect, and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110120% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 3 contracts
Sources: Senior Secured Revolving Credit Agreement (Medley Capital Corp), Senior Secured Revolving Credit Agreement (Medley Capital Corp), Revolving Credit Agreement (Medley Capital Corp)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, its Subsidiaries (other than Financing Subsidiaries and Immaterial Subsidiaries) to enter into any transaction of merger merger, consolidation, division or consolidation amalgamation or amalgamation, or to liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, its Subsidiaries (other than Financing Subsidiaries and Immaterial Subsidiaries) to acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries and Immaterial Subsidiaries) to, convey, sell, lease, transfer transfer. divide or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash and dispositions of investments in connection with exits and work-outs (including assets abandoned for no consideration if the Borrower determines such assets have no value) in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses clause (d) and (e) below, InvestmentsPortfolio Investments (to the extent not otherwise included in clause (x) of this Section). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that (i) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing, (ii) if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between the Borrower and a Subsidiary Guarantor, the Borrower shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower Obligor may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect to the Administrative Agent; provided however, if the Borrowing Base is at least 150% of the Covered Debt Amount as of the last day of the monthly accounting period ending immediately prior to such sale, transfer or disposition, as evidenced in the Borrowing Base Certificate most recently delivered by the Borrower pursuant to Section 5.01(d), then the certificate of a Financial Officer referred to in this clause (i) shall be delivered no later than the last day of the calendar month in which such sale, transfer or disposition occurs, and (ii) either (x) the amount by which of any excess availability under the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release sale, transfer or other disposition is not diminished as a result of such release sale, transfer or other disposition or (y) the Gross Borrowing Base immediately after giving effect to such release sale, transfer or other disposition is at least 110% of the Covered Debt Amount;
(fe) the Borrower or any Subsidiary may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; andcontinuing and provided that (i) if any such transaction shall be between the Borrower and another Person, the Borrower shall be the continuing or surviving corporation, (ii) if any such transaction shall be between a wholly-owned Subsidiary Guarantor and another Person (other than the Borrower), a wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between a Subsidiary Guarantor and another Person (other than the Borrower or a wholly-owned Subsidiary Guarantor), a Subsidiary Guarantor shall be the continuing or surviving corporation;
(gf) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 25,000,000 in any fiscal year; and
(g) the Borrower or the other Obligors may dissolve or liquidate (i) any Subsidiary that does not own, legally or beneficially, assets which in aggregate have a value of $500,000 or more at such time of dissolution or liquidation or (ii) any SBIC Subsidiary, provided that no portion of any Indebtedness or any other obligations (contingent or otherwise) of such SBIC Subsidiary (A) is, or would as a result of dissolution or liquidation hereunder become, recourse to or obligate the Borrower or any other Obligor (other than any SBIC Subsidiary) in any way, or (B) subjects, or would as a result of dissolution or liquidation hereunder subject, any property of the Borrower or any other Obligor (other than any SBIC Subsidiary) to the satisfaction of such Indebtedness.
Appears in 3 contracts
Sources: Senior Secured Credit Agreement (SLR Investment Corp.), Senior Secured Credit Agreement (SLR Investment Corp.), Senior Secured Credit Agreement (Solar Capital Ltd.)
Fundamental Changes. The Borrower will not, nor and will it not permit any of the Subsidiary Guarantors Secured Loan Party to, enter into any transaction of merger or merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, Dispose of all or be a party to any acquisition of, any Personsubstantially all of its property or business, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Sectionthat:
(a) any Subsidiary Guarantor of the Borrower may be merged merged, consolidated or consolidated amalgamated with or into the Borrower or any other Subsidiary Guarantor; (provided that if any such transaction the Borrower shall be between a the continuing or surviving corporation) or with or into any Wholly Owned Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, (provided that (i) the wholly owned Wholly Owned Subsidiary Guarantor shall be the continuing or surviving corporationcorporation and (ii) any Excluded Subsidiary may merge, consolidate or amalgamate with any other Excluded Subsidiary);
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose Dispose of any or all of its assets (upon voluntary liquidation or otherwisei) to the Borrower or any wholly owned Wholly Owned Subsidiary Guarantor (upon voluntary liquidation, winding up, dissolution or otherwise) or (ii) pursuant to a Disposition that does not result in a Disposition of all or substantially all of the Borrowerproperty or business of the Secured Loan Parties, taken as a whole;
(c) the capital stock of Borrower or any Subsidiary thereof may be merged, consolidated or amalgamated with a Person, provided that (i) the Borrower or such Subsidiary is the continuing or surviving corporation and (ii) the shareholders of the Borrower may be soldor such Subsidiary immediately prior to such merger, transferred consolidation or otherwise disposed of to amalgamation hold the Borrower or any wholly owned Subsidiary Guarantor majority of the BorrowerCapital Stock of the entity that results from such merger, consolidation or amalgamation;
(d) the Obligors Borrower or any Subsidiary thereof may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and make any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does Disposition not exceed the Borrowing Baseprohibited by Section 8.04 hereof;
(e) the Obligors any De Minimis Subsidiary may sell, transfer voluntarily liquidate or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers dissolve to the Administrative Agent a certificate extent the board of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result directors of such release or (y) De Minimis Subsidiary deems it to be in its best interest and to the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;extent doing so would not have a Material Adverse Effect.
(f) Borrower, Holdings, Canadian New Holdings and Canadian Acquisitionco may effect one or more Permitted Restructuring Transactions at any time and, where applicable, from time to time following the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearRestatement Date.
Appears in 3 contracts
Sources: Loan Agreement, Loan Agreement (Chrysler Group LLC), Loan Agreement (Chrysler Group LLC)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than any SPE Subsidiaries or Immaterial Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than any Financing Subsidiaries or Immaterial Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than any Financing Subsidiaries or Immaterial Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash and dispositions of investments in connection with exits and work-outs in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses clause (d) and (e) below, InvestmentsPortfolio Investments (to the extent not otherwise included in clause (x) of this Section). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that (i) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing, (ii) if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between the Borrower and a Subsidiary Guarantor, the Borrower shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such salePortfolio Investments, transfer or other disposition (Cash and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments Cash Equivalents to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition release (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect to the Administrative Agent and (ii) either (x) the amount by which of any excess availability under the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(fe) the Borrower or any Subsidiary may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; andcontinuing and provided that (i) if any such transaction shall be between the Borrower and another Person, the Borrower shall be the continuing or surviving corporation, (ii) if any such transaction shall be between a wholly-owned Subsidiary Guarantor and another Person (other than the Borrower), a wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between a Subsidiary Guarantor and another Person (other than the Borrower or a wholly-owned Subsidiary Guarantor), a Subsidiary Guarantor shall be the continuing or surviving corporation;
(gf) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year;
(g) any Subsidiary may voluntarily dissolve or liquidate if such Subsidiary that does not own, legally or beneficially, assets which in aggregate have a value of $500,000 or more at such time of dissolution or liquidation; and
(h) the Borrower or the other Obligors may dissolve or liquidate any SBIC Subsidiary; provided that no portion of any Indebtedness or any other obligations (contingent or otherwise) of such SBIC Subsidiary (a) is, or would as a result of dissolution or liquidation hereunder become, recourse to or obligate the Borrower or any other Obligor (other than any SBIC Subsidiary) in any way, or (b) subjects, or would as a result of the dissolution or liquidation hereunder subject, any property of the Borrower or any other Obligor (other than any SBIC Subsidiary) to the satisfaction of such Indebtedness.
Appears in 3 contracts
Sources: Senior Secured Revolving Credit Agreement (BlackRock Capital Investment Corp), Senior Secured Revolving Credit Agreement (BlackRock Capital Investment Corp), Senior Secured Revolving Credit Agreement (BlackRock Capital Investment Corp)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose Dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) either (x) the Covered Debt Amount does not exceed the Borrowing BaseBase or (y) if the Administrative Agent consents in writing, the amount by which the Covered Debt Amount exceeds the Borrowing Base is reduced thereby;
(e) the Obligors may sell, transfer or otherwise dispose Dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and;
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year; and
(h) the Obligors may transfer assets to a Financing Subsidiary for the sole purpose of facilitating the transfer of assets from one Financing Subsidiary (or a Subsidiary that was a Financing Subsidiary immediately prior to such disposition) to another Financing Subsidiary, directly or indirectly through such Obligor (such assets, the “Transferred Assets”), provided that (i) no Default exists or is continuing at such time, (ii) the Covered Debt Amount shall not exceed the Borrowing Base at such time and (iii) the Transferred Assets were transferred to such Obligor by the transferor Financing Subsidiary on the same Business Day that such assets are transferred by such Obligor to the transferee Financing Subsidiary.
Appears in 3 contracts
Sources: Senior Secured Revolving Credit Agreement (Goldman Sachs BDC, Inc.), Senior Secured Revolving Credit Agreement (Goldman Sachs BDC, Inc.), Senior Secured Revolving Credit Agreement (Goldman Sachs BDC, Inc.)
Fundamental Changes. (a) The Borrower will not, nor and will it not permit any of the Subsidiary Guarantors its Subsidiaries to, enter merge into or consolidate into any transaction of merger or consolidation or amalgamationother Person, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any other Person to merge into or consolidate with any such Person, or acquire all or substantially all of the Subsidiary Guarantors to, acquire any business Capital Stock or property fromof another Person, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of (in a single transaction or a series of transactions) all or substantially all of any of their respective assets (in each case, whether now owned or hereafter acquired) or all or substantially all of the stock of any of their Subsidiaries (in each case, whether now owned or hereafter acquired) or liquidate or dissolve, other than: (i) a merger or consolidation among the Borrower and one or more of its assets (upon voluntary liquidation or otherwise) to Subsidiaries, provided that the Borrower is the surviving corporation, or any wholly owned Subsidiary Guarantor (ii) a merger or consolidation solely between or among two or more Subsidiaries of the Borrower;
, provided that if American Southern or Bankers Fidelity Life is involved in such merger or consolidation, American Southern or Bankers Fidelity Life, as applicable, is the surviving corporation, or (ciii) in connection with an Acquisition permitted hereunder effected by a merger in which the Borrower, American Southern, Bankers Fidelity Life or, in a merger in which the Borrower, American Southern or Bankers’ Fidelity Life is not a party, a Subsidiary of the Borrower is the surviving entity, or (iv) the capital stock liquidation or dissolution of any Subsidiary of the Borrower may be sold, (other than American Southern or Bankers Fidelity Life) so long as either (A) such Subsidiary owns no assets at the time of such liquidation or dissolution or (B) any assets owned by such Subsidiary are transferred or otherwise disposed of to the Borrower or any wholly owned another Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is liquidation or dissolution.
(b) The Borrower will not, and will not diminished as a result permit any of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% its Subsidiaries to, engage in any business other than businesses of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) type conducted by the Borrower and each of its Subsidiaries on the Subsidiary Guarantors may sell, lease, transfer date hereof and businesses reasonably related or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearancillary thereto.
Appears in 3 contracts
Sources: Revolving Credit Agreement (Atlantic American Corp), Revolving Credit Agreement (Atlantic American Corp), Revolving Credit Agreement (Atlantic American Corp)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including, without limitation, Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than including Cash and Cash Equivalents but excluding Portfolio Investments) sold or disposed of in the ordinary course of business of the Borrower and its Subsidiaries (other than the Financing Subsidiaries) (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries (other than the Financing Subsidiaries)) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) any Subsidiary of the Borrower may be liquidated or dissolved; provided that (i) in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower and (ii) the Borrower determines in good faith that such liquidation is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(d) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(de) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Collateral Base;
(ef) the Obligors may sell, transfer or otherwise dispose of Investments Portfolio Investments, Cash and Cash Equivalents to a Financing Subsidiary so long as (i) prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Collateral Base and no Default exists and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect effect, and (ii) either (x) the amount by which the Borrowing Collateral Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Collateral Base immediately after giving effect to such release is at least 110120% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 3 contracts
Sources: Senior Secured Term Loan Credit Agreement (Medley Capital Corp), Senior Secured Term Loan Agreement (Medley Capital Corp), Term Loan Credit Agreement (Medley Capital Corp)
Fundamental Changes. (a) The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, enter 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 any substantial part of its assets, or any of its Borrowing Base Properties or any of the Equity Interests of any Restricted Subsidiary (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, the Borrower or any Restricted Subsidiary may sell Hydrocarbons produced from its Oil and Gas Interests in the ordinary course of business, and if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Restricted Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entity, (ii) any Restricted Subsidiary may merge into any other Restricted Subsidiary in a transaction in which the surviving entity is a Restricted Subsidiary, (iii) any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of merger its assets to the Borrower or consolidation or amalgamationto another Restricted Subsidiary, or liquidate, wind up (iv) any Restricted Subsidiary may liquidate or dissolve itself (or suffer any if the Borrower determines in good faith that such liquidation or dissolutiondissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of equipment and related items in the ordinary course of business, that are obsolete or no longer necessary in the business of the Borrower or any of its Restricted Subsidiaries or that is being replaced by equipment of comparable value and utility, (vi) subject to Section 2.12(b), the Borrower or any Restricted Subsidiary may sell, transfer, lease, exchange, abandon or otherwise dispose of Borrowing Base Properties with a value not exceeding, in the aggregate for the Borrower and its Restricted Subsidiaries taken as a whole, five percent (5%) of the Borrowing Base between Scheduled Redeterminations and (vii) with the prior written consent of Required Lenders and subject to Section 2.02(d) and Section 2.12(b), the Borrower or any Restricted Subsidiary may sell, transfer, lease, exchange, abandon or otherwise dispose of Borrowing Base Properties not otherwise permitted pursuant to the foregoing clause (vi). For purposes of the foregoing clause (vi), the value of any Oil and Gas Interests included in the Borrowing Base Properties shall be the Engineered Value of such Oil and Gas Interests and the value of all other Oil and Gas Interests shall be the value which would be assigned to such Oil and Gas Interests using the same methodology, assumptions and discount rates used to determine the Engineered Value of the Borrowing Base Properties as of the most recent Redetermination. In addition, for purposes of determining compliance with clause (vi) of this Section with respect to any exchange of Oil and Gas Interests, the value of such exchange shall be the net reduction, if any, in Engineered Value realized or resulting from such exchange.
(b) The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, acquire engage to any material extent in any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course than businesses of the day-to-day business activities of type conducted by the Borrower and its Restricted Subsidiaries and not in violation on the date of the terms and conditions execution of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (the Transactions and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect businesses reasonably related thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 2 contracts
Sources: Credit Agreement (Exco Resources Inc), Credit Agreement (EXCO Partners, LP)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses clause (d) and (e) below, InvestmentsPortfolio Investments (to the extent not otherwise included in clause (x) of this Section). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition release (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect to the Administrative Agent and (ii) either (x) the amount by which of any excess availability under the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(fe) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(gf) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (Apollo Investment Corp), Amended and Restated Senior Secured Revolving Credit Agreement (Apollo Investment Corp)
Fundamental Changes. The Borrower Except for (a) the liquidation of Thunder Press into its parent company, ▇▇▇▇▇▇ Publishing Group, Inc., and (b) the merger of ▇▇▇▇▇▇▇ Publications Corporation with and into IL Enterprises, Inc., each of which shall occur on or prior to the Effective Date, no Credit Party will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower No Credit Party will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, Person except for purchases or acquisitions of Investments inventory and other assets property to be sold or used in the normal ordinary course of the day-to-day business activities of the Borrower business, Investments permitted under Section 7.5 and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan DocumentCapital Expenditures permitted under Section 7.9(e). The Borrower No Credit Party will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any material part of its assetsbusiness or property, whether now owned or hereafter acquiredacquired (including, without limitation, receivables and leasehold interests, but excluding (x) assets obsolete or worn-out property, including leasehold interests, no longer used or useful in its business, (y) any inventory or other than Investments) property sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day and on ordinary business activities of the Borrower and its Subsidiaries) terms and (yz) subject Sale-Leaseback Transactions to the provisions of clauses (d) and (e) below, Investmentsextent permitted by Section 7.14. Notwithstanding the foregoing provisions of this SectionSection 7.4:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantoror into the Borrower; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary GuarantorWholly Owned Subsidiary, the wholly owned Wholly Owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor that is a Wholly Owned Subsidiary of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor that is a Wholly Owned Subsidiary of the Borrower;; and
(d) the Obligors any Credit Party may sellconsummate any Acquisition with any other Person (whether by way of purchase of assets or stock, transfer by merger or otherwise dispose of Investments (other than to a Financing Subsidiary) consolidation or otherwise), so long as after giving effect to such sale, transfer or other disposition as:
(i) the aggregate purchase price (including assumed liabilities and any concurrent acquisitions non-cash consideration valued at the fair market value thereof determined in good faith by the Board of Investments or payment Directors of outstanding Loansthe Borrower) paid by the Covered Debt Amount does not Credit Parties for Acquisitions in any fiscal year shall not, without the prior consent of the Required Senior Lenders, exceed the Borrowing Base$15,000,000;
(eii) such Acquisition (if by purchase of assets, merger or consolidation) shall be effected in such manner so that the acquired business, and the related assets, are owned by a Credit Party and, if effected by merger or consolidation involving a Credit Party, the Credit Party shall be the continuing or surviving entity;
(iii) such Acquisition (if by purchase of stock) shall be effected in such manner so that the acquired entity becomes a Wholly Owned Subsidiary of a Credit Party;
(iv) the Obligors may sell, transfer type of business of the business acquired in such Acquisition shall be one of the types of business engaged in by the Credit Parties as of the Effective Date and such business shall be located in the United States or otherwise dispose of Investments to a Financing Subsidiary so long as Canada;
(iv) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) Acquisition the Covered Debt Amount does not exceed the Borrowing Base Credit Parties shall be in compliance with Section 7.9 and the Borrower delivers shall have delivered to the Administrative Agent a certificate of a Financial Officer showing such calculations in reasonable detail to demonstrate such effect and compliance; and
(iivi) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof Acquisition and after giving effect thereto, no Default shall have occurred or and be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 2 contracts
Sources: Credit Agreement (Affinity Group Inc), Credit Agreement (Affinity Group Holding, Inc.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, its Subsidiaries (other than Financing Subsidiaries) to enter into any transaction of merger or merger, consolidation or amalgamation, amalgamation or to liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, its Subsidiaries (other than Financing Subsidiaries) to acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash and dispositions of investments in connection with exits and work-outs (including assets abandoned for no consideration if the Borrower determines such assets have no value) in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses clause (d) and (e) below, InvestmentsPortfolio Investments (to the extent not otherwise included in clause (x) of this Section). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that (i) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing, (ii) if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between the Borrower and a Subsidiary Guarantor, the Borrower shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition release (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect to the Administrative Agent and (ii) either (x) the amount by which of any excess availability under the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(fe) the Borrower or any Subsidiary may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuingcontinuing and provided that (i) if any such transaction shall be between the Borrower and another Person, the Borrower shall be the continuing or surviving corporation, (ii) if any such transaction shall be between a wholly-owned Subsidiary Guarantor and another Person (other than the Borrower), a wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between a Subsidiary Guarantor and another Person (other than the Borrower or a wholly-owned Subsidiary Guarantor), a Subsidiary Guarantor shall be the continuing or surviving corporation; and
(gf) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 25,000,000 in any fiscal year.
Appears in 2 contracts
Sources: Senior Secured Term Loan Agreement (Solar Capital Ltd.), Senior Secured Revolving Credit Agreement (Solar Capital Ltd.)
Fundamental Changes. The Borrower will notMerge, nor will it permit any consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of the assets of (i) SXL Operations or any Subsidiary Guarantors to, enter into any transaction (other than the Borrower and its Subsidiaries) determined based upon the assets of merger or consolidation or amalgamationSXL Operations and its Subsidiaries on a consolidated basis, or liquidate, wind up (ii) the Borrower or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any Subsidiary of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other Borrower determined based upon the assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or on a series of transactions, any part of its assetsconsolidated basis, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold to or disposed in favor of in the ordinary course any Person, except that, so long as no Default or Event of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this SectionDefault exists or would result therefrom:
(a) mergers and consolidations among SXL Operations and its Subsidiaries are permitted, provided that in any Subsidiary Guarantor of merger or consolidation involving (i) the Borrower, the Borrower may be merged is the surviving entity, or consolidated with or into (ii) SXL Operations, SXL Operations is the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) mergers and consolidations with another Person, provided that in any merger or consolidation involving (i) the Borrower, the Borrower is the surviving entity, (ii) SXL Operations, SXL Operations is the surviving entity, or (iii) any Subsidiary, (A) such Subsidiary is the surviving entity, or (B) such Person, upon completion of the merger or consolidation, will be a Subsidiary; and
(c) any Subsidiary Guarantor of (other than the Borrower Borrower) may sell, lease, transfer sell or otherwise dispose of any transfer all or substantially all of its assets (upon voluntary liquidation liquidation, dissolution or otherwise) ), to the Borrower Borrower, SXL Operations or any wholly owned Subsidiary Guarantor of to another Subsidiary; provided that if the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity transferor in such a transaction and (ii) at is a Wholly-Owned Subsidiary, then the time thereof and after giving effect thereto, no Default shall have occurred or transferee must also be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yeara Wholly-Owned Subsidiary.
Appears in 2 contracts
Sources: 364 Day Revolving Credit Agreement (Sunoco Logistics Partners L.P.), 364 Day Revolving Credit Agreement (Sunoco Logistics Partners L.P.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash and dispositions of investments in connection with exits and work-outs in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses clause (d) and (e) below, InvestmentsPortfolio Investments (to the extent not otherwise included in clause (x) of this Section). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that (i) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing, (ii) if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between the Borrower and a Subsidiary Guarantor, the Borrower shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition release (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect to the Administrative Agent and (ii) either (x) the amount by which of any excess availability under the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(fe) the Borrower or any Subsidiary may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuingcontinuing and provided that (i) if any such transaction shall be between the Borrower and another Person, the Borrower shall be the continuing or surviving corporation, (ii) if any such transaction shall be between a wholly-owned Subsidiary Guarantor and another Person (other than the Borrower), a wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between a Subsidiary Guarantor and another Person (other than the Borrower or a wholly-owned Subsidiary Guarantor), a Subsidiary Guarantor shall be the continuing or surviving corporation; and
(gf) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year.
Appears in 2 contracts
Sources: Amendment No. 1 (BlackRock Kelso Capital CORP), Senior Secured Credit Agreement (BlackRock Kelso Capital CORP)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than any SPE Subsidiaries or Immaterial Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than any Financing Subsidiaries or Immaterial Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than any Financing Subsidiaries or Immaterial Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash and dispositions of investments in connection with exits and work-outs in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses clause (d) and (e) below, InvestmentsPortfolio Investments (to the extent not otherwise included in clause (x) of this Section). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that (i) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing, (ii) if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between the Borrower and a Subsidiary Guarantor, the Borrower shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such salePortfolio Investments, transfer or other disposition (Cash and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments Cash Equivalents to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition release (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect to the Administrative Agent and (ii) either (x) the amount by which of any excess availability under the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(fe) the Borrower or any Subsidiary may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; andprovided that (i) if any such transaction shall be between the Borrower and another Person, (A) the Borrower shall be the continuing or surviving corporation, (B) Reorganization Merger Sub shall be the continuing or surviving entity, in which case, on and after the Reorganization Amendments Effective Date and consummation of the Reorganization Merger, Reorganization Merger Sub will succeed to, and be substituted for the Borrower under this Agreement, or (C) if the Person (other than Reorganization Merger Sub) formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Company”), (x) the Successor Company shall be an entity organized or existing under the Laws of the United States, any state thereof, the District of Columbia or any territory thereof, and (y) the Successor Company shall execute and deliver a Borrower Assumption Agreement to the Administrative Agent and (z) (I) solely to the extent applicable, the Administrative Agent shall have received all documentation and other information reasonably requested in writing by the Administrative Agent or any Lender (through the Administrative Agent) about the Successor Company at least ten Business Days in advance of the date of consummation of the relevant merger or consolidation, which documentation and other information is required by applicable regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, and the delivery of such “know your customer” and anti-money laundering information shall be satisfactory to the applicable requesting Lenders and (II) solely to the extent reasonably requested in writing by the Administrative Agent at least ten Business Days in advance of the date of consummation of the relevant merger or consolidation, a customary written opinion of counsel to the Successor Company; provided, further, that if the foregoing clauses (x), (y) and (z) are satisfied, the Successor Company will succeed to, and be substituted for the Borrower under this Agreement, (ii) if any such transaction shall be between a wholly owned Subsidiary Guarantor and another Person (other than the Borrower), a wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between a Subsidiary Guarantor and another Person (other than the Borrower or a wholly owned Subsidiary Guarantor), a Subsidiary Guarantor shall be the continuing or surviving corporation;
(gf) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year;
(g) any Subsidiary may voluntarily dissolve or liquidate if such Subsidiary that does not own, legally or beneficially, assets which in aggregate have a value of $500,000 or more at such time of dissolution or liquidation;
(h) the Borrower or the other Obligors may dissolve or liquidate any SBIC Subsidiary; provided that no portion of any Indebtedness or any other obligations (contingent or otherwise) of such SBIC Subsidiary (a) is, or would as a result of dissolution or liquidation hereunder become, recourse to or obligate the Borrower or any other Obligor (other than any SBIC Subsidiary) in any way, or (b) subjects, or would as a result of the dissolution or liquidation hereunder subject, any property of the Borrower or any other Obligor (other than any SBIC Subsidiary) to the satisfaction of such Indebtedness; and
(i) nothing contained in this Section 6.03 shall restrict or prohibit the consummation of the Reorganization Transactions or any Other Reorganization Transactions.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (BlackRock TCP Capital Corp.), Senior Secured Revolving Credit Agreement (BlackRock TCP Capital Corp.)
Fundamental Changes. The With respect to the Borrower will notor any Significant Subsidiary, nor will it permit any without the consent of the Subsidiary Guarantors to, Administrative Agent and the Required Lenders enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned all or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course substantially all of the day-to-day business activities consolidated assets of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
taken as a whole, except (a) for sales, leases or rentals of property or assets in the ordinary course of business, (b) that any consolidated Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower (provided that the Borrower shall be the continuing or surviving Person) or with any other Subsidiary Guarantor; one or more Subsidiaries of the Borrower (provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly wholly-owned Subsidiary, the wholly-owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
Person), (bc) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly another wholly-owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
and (d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate be merged with any other Person so long as if (i) the Borrower is the continuing or surviving entity in such transaction and Person, (ii) at immediately after giving effect to such merger, there shall exist no condition or event which constitutes an Event of Default or which, with the giving of notice or lapse of time thereof or both, would constitute an Event of Default, and (iii) all representations and warranties contained in Article III hereof are true and correct in all material respects (except for any such representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which representation shall be true and correct in all respects) on and as of the date of the consummation of such merger, and after giving effect thereto, no Default as though restated on and as of such date (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have occurred be true and correct in all material respects (except for any such representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which representation shall be continuing; and
(gtrue and correct in all respects) the Borrower and each as of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearearlier date).
Appears in 2 contracts
Sources: Credit Agreement (Northwest Natural Gas Co), Credit Agreement (Northwest Natural Gas Co)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve or divide itself (or suffer any liquidation liquidation, dissolution or dissolutiondivision). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Portfolio Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash and Cash Equivalents in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred (including a deemed transfer resulting from a division or plan of division) or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) either (x) the Covered Debt Amount does not exceed the Borrowing BaseBase or (y) if such sale, transfer or other disposition is made pursuant to, and in accordance with, a plan submitted and accepted in accordance with clause (e) of Article VII or if the Administrative Agent otherwise consents in writing, the amount by which the Covered Debt Amount exceeds the Borrowing Base is reduced thereby;
(e) the Obligors may sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of Portfolio Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with with, or acquire all or substantially all of the assets of, any other Person (including any Subsidiary Guarantor) so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; andprovided that, in no event shall the Borrower enter in any transaction of merger or consolidation or amalgamation, or effect any internal reorganization, if the surviving entity would be organized under any jurisdiction other than a jurisdiction of the United States;
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year;
(h) the Obligors may transfer assets to a Financing Subsidiary for the sole purpose of facilitating the transfer of assets from one Financing Subsidiary (or a Subsidiary that was a Financing Subsidiary immediately prior to such disposition) to another Financing Subsidiary, directly or indirectly through such Obligor (such assets, the “Transferred Assets”), provided that (i) no Default exists or is continuing at such time, (ii) the Covered Debt Amount shall not exceed the Borrowing Base at such time and (iii) the Transferred Assets were transferred to such Obligor by the transferor Financing Subsidiary on the same Business Day that such assets are transferred by such Obligor to the transferee Financing Subsidiary; and
(i) the Obligors may dissolve or liquidate (i) any Immaterial Subsidiary or (ii) any Subsidiary so long as (x) in connection with such dissolution or liquidation, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to an Obligor and (y) such dissolution or liquidation is not materially adverse to the Lenders and the Borrower determines in good faith that such dissolution or liquidation is in the best interests of the Borrower.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (Owl Rock Capital Corp), Senior Secured Revolving Credit Agreement (Owl Rock Technology Finance Corp.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including, without limitation, Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than including Cash and Cash Equivalents but excluding Portfolio Investments) sold or disposed of in the ordinary course of business of the Borrower and its Subsidiaries (other than the Financing Subsidiaries) (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries (other than the Financing Subsidiaries)) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than ownership interests in Financing Subsidiaries), Cash and Cash Equivalents to a Financing Subsidiary so long as (i) prior to and immediately after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) (i) the Covered Debt Amount does not exceed the Borrowing Base and no Default exists, and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and effect, (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110115% of the Covered Debt Amount, (iii) the sum of (x) all sales, transfers or other dispositions under this clause (e) that occur after the Revolver Termination Date and do not result in Net Asset Sale Proceeds for fair value that are applied in accordance with Section 2.08(d)(i) and (y) all Investments under Section 6.04(e) that occur after the Revolver Termination Date, shall not exceed 20% of the Commitments on the Revolver Termination Date, and (iv) the Obligors’ Net Worth is in excess of $175,000,000 (and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect); provided that, notwithstanding the foregoing, the Obligors may, on or after the Amendment No. 1 Effective Date and prior to the earlier of (x) the Revolver Termination Date and (y) the date that is six (6) months after the date on which the aggregate amount of all net proceeds of all Unsecured Longer-Term Indebtedness and all sales of Equity Interests by the Borrower and/or its Subsidiaries after the Amendment No. 1 Effective Date (other than the proceeds of sales of Equity Interests by and among the Borrower and its Subsidiaries) is equal to or greater than $40,000,000, transfer Portfolio Investments (other than ownership interests in Financing Subsidiaries) and Cash to Monroe Capital Corporation SBIC, LP, so long as immediately prior to and immediately after giving effect to such transfer, (i) no Default exists, (ii) the Borrowing Base is at least 105% of the Covered Debt Amount, (iii) the sum of the value (determined as of the date of each such transfer pursuant to the valuation methodologies set forth in Section 5.12) of all such transfers of Portfolio Investments and Cash to Monroe Capital Corporation SBIC, LP following the Amendment No. 1 Effective Date pursuant to this proviso does not exceed $40,000,000 in the aggregate (provided further that the value (determined as of the date of each such transfer pursuant to the valuation methodologies set forth in Section 5.12) of all such transfers in the aggregate shall not exceed $20,000,000 plus the net cash proceeds received by the Borrower from any Unsecured Longer-Term Indebtedness or Equity Interest of the Borrower that is not Disqualified Equity Interest, in each case, issued by the Borrower following the Amendment No. 1 Effective Date and outstanding as of the date of such transfer), and (iv) the Obligors’ Net Worth is not less than $115,000,000 (and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer with respect to each of the clauses (i) through (iv) of this proviso);
(f) an Obligor may transfer assets to a Financing Subsidiary for the sole purpose of facilitating the transfer of assets from one Financing Subsidiary (or a Subsidiary that was a Financing Subsidiary immediately prior to such disposition) to another Financing Subsidiary, directly or indirectly through such Obligor (such assets, the “Transferred Assets”); provided that (i) no Default exists or is continuing at such time, and the Covered Debt Amount shall not exceed the Borrowing Base at such time and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect, and (ii) the Transferred Assets were transferred to such Obligor by the transferor Financing Subsidiary on the same Business Day that such assets are transferred by such Obligor to the transferee Financing Subsidiary;
(g) the Borrower may merge or consolidate with any other Person Person, so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and;
(gh) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year; and
(i) any Subsidiary of the Borrower may be liquidated or dissolved; provided that (i) in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower and (ii) the Borrower determines in good faith that such liquidation is in the best interests of the Borrower and is not materially disadvantageous to the Lenders.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (MONROE CAPITAL Corp), Senior Secured Revolving Credit Agreement (MONROE CAPITAL Corp)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve or divide itself (or suffer any liquidation liquidation, dissolution or dissolutiondivision). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock Capital Stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (w) any transaction permitted under Section 6.05 or 6.12, (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash Cash and Cash Equivalents in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock Capital Stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of (including by way of consolidation or merger)
(i) to the Borrower or any wholly owned Subsidiary Guarantor of the BorrowerBorrower or (ii) so long as such transaction results in an Obligor receiving the proceeds of such disposition, to any other Person, provided, that in the case of this clause (ii), if such Subsidiary is a Subsidiary Guarantor or holds any Portfolio Investments, the Borrower would not have been prohibited from disposing of any such Portfolio Investments to such other Person under any other term of this Agreement;
(d) the Obligors may sell, transfer or otherwise dispose Dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) Loans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) sum of the Covered Debt Amount plus the Net Revolving Exposure does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose Dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) Loans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) the sum of the Covered Debt Amount plus the Net Revolving Exposure does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the sum of the Covered Debt Amount plus the Net Revolving Exposure immediately prior to such release sale, transfer or other disposition is not diminished as a result of such release sale, transfer or other disposition or (y) the Borrowing Base immediately after giving effect to such release sale, transfer or other disposition is at least 110% of the sum of the Covered Debt AmountAmount plus the Net Revolving Exposure;
(f) the Borrower may merge or consolidate with (or acquire all or substantially all of the assets of) any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect theretothereto (and any concurrent acquisitions of Portfolio Investments by the Borrower or payment of outstanding Loans), no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year; provided that, in no event shall the Borrower enter in any transaction of merger or consolidation or amalgamation, or effect any internal reorganization, if the surviving entity would be organized under any jurisdiction other than a jurisdiction of the United States.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (AG Twin Brook Capital Income Fund), Senior Secured Revolving Credit Agreement (AG Twin Brook Capital Income Fund)
Fundamental Changes. (a) The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, enter 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 any substantial part of its assets, or any of its Borrowing Base Properties or any of the Equity Interests of any Restricted Subsidiary (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, the Borrower or any Restricted Subsidiary may sell Hydrocarbons produced from its Oil and Gas Interests in the ordinary course of business, and if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Restricted Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entity, (ii) any Restricted Subsidiary may merge into any other Restricted Subsidiary in a transaction in which the surviving entity is a Restricted Subsidiary, (iii) any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of merger its assets to the Borrower or consolidation or amalgamationto another Restricted Subsidiary, or liquidate, wind up (iv) any Restricted Subsidiary may liquidate or dissolve itself if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of equipment and related items in the ordinary course of business, that are obsolete or no longer necessary in the business of the Borrower or any of its Restricted Subsidiaries or that is being replaced by equipment of comparable value and utility, (vi) the Borrower or any Restricted Subsidiary may sell, transfer or otherwise dispose of the Excluded Properties; (vii) the Borrower or any Restricted Subsidiary may sell, transfer, lease, exchange, abandon or otherwise dispose of Borrowing Base Properties with a value not exceeding, in the aggregate for the Borrower and its Restricted Subsidiaries taken, as a whole, 5% of the Borrowing Base between scheduled redeterminations as determined pursuant to the terms of the Revolving Facility Documents (or suffer any liquidation or dissolutionif the Revolving Facility has been terminated, as determined by the Administrative Agent in substantially the same manner as set forth in the Revolving Facility Documents). Notwithstanding the foregoing, the Borrower or any Restricted Subsidiary may sell, transfer, lease, exchange, abandon or otherwise dispose of Borrowing Base Properties not otherwise permitted pursuant to the foregoing clause (vii) provided that (A) the consideration received in respect of such sale or other disposition shall be equal to or greater than the fair market value of the Borrowing Base Properties, interest therein or Restricted Subsidiary subject to the sale or other disposition (as reasonably determined by, in the case of any sale or disposition of the Borrowing Base Properties with a value equal to or greater than $15,000,000) the Board of Directors of the Borrower and, if requested by the Administrative Agent, the Borrower shall deliver a certificate of a Financial Officer certifying to that effect), (B) 100% of the consideration for such sale or other disposition shall be in the form of cash or Permitted Investments and (C) except for the Net Cash Proceeds from the sale or other disposition of the Excluded Properties, an amount equal to 100% of the Net Cash Proceeds received from such sale or other disposition shall be used within 90 days of such disposition (1) to acquire property, plant and equipment or any business entity used or useful in carrying on the business of the Borrower and its Restricted Subsidiaries and having a fair market value at least equal to the fair market value of the properties sold or otherwise disposed of or to improve or replace any existing property of the Borrower and its Restricted Subsidiaries used or useful in carrying on the business of the Borrower and its Restricted Subsidiaries (the “Reinvestment Deferred Amount”), (2) to repay Indebtedness under the Revolving Facility (with a corresponding permanent reduction of the commitments thereunder) or (3) to prepay the Loans. For purposes of the foregoing clause (vi), the value of any Oil and Gas Interests included in the Borrowing Base Properties shall be as determined pursuant to the terms of the Revolving Facility Documents (or if the Revolving Facility has been terminated, as determined by the Administrative Agent in substantially the same manner as set forth in the Revolving Facility Documents).
(b) The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, acquire engage to any material extent in any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course than businesses of the day-to-day business activities of type conducted by the Borrower and its Restricted Subsidiaries and not in violation on the date of the terms and conditions execution of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (the Transactions and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect businesses reasonably related thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 2 contracts
Sources: Senior Term Credit Agreement (Exco Resources Inc), Senior Term Credit Agreement (Exco Resources Inc)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock Capital Stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock Capital Stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of (including by way of consolidation or merger)
(i) to the Borrower or any wholly owned Subsidiary Guarantor of the BorrowerBorrower or (ii) so long as such transaction results in an Obligor receiving the proceeds of such disposition, to any other Person, provided that in the case of this clause (ii) if such Subsidiary is a Subsidiary Guarantor or holds any Portfolio Investments, the Borrower would not have been prohibited from disposing of any such Portfolio Investments to such other Person under any other term of this Agreement;
(d) the Obligors may sell, transfer or otherwise dispose Dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) either (x) the Covered Debt Amount does not exceed the Borrowing BaseBase or (y) if such sale, transfer or other disposition is made pursuant to, and in accordance with, a plan submitted and accepted in accordance with clause (e) of Article VII or if the Administrative Agent otherwise consents in writing, the amount by which the Covered Debt Amount exceeds the Borrowing Base is reduced thereby;
(e) the Obligors may sell, transfer or otherwise dispose Dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with (or acquire all or substantially all of the assets of) any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and;
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year; and
(h) the Obligors may transfer assets to a Financing Subsidiary for the sole purpose of facilitating the transfer of assets from one Financing Subsidiary (or a Subsidiary that was a Financing Subsidiary immediately prior to such disposition) to another Financing Subsidiary, directly or indirectly through such Obligor (such assets, the “Transferred Assets”), provided that (i) no Default exists or is continuing at such time, (ii) the Covered Debt Amount shall not exceed the Borrowing Base at such time and (iii) the Transferred Assets were transferred to such Obligor by the transferor Financing Subsidiary on the same Business Day that such assets are transferred by such Obligor to the transferee Financing Subsidiary.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (Goldman Sachs BDC, Inc.), Senior Secured Revolving Credit Agreement (Goldman Sachs BDC, Inc.)
Fundamental Changes. The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve or divide itself (or suffer any liquidation liquidation, dissolution or dissolutiondivision). The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock Capital Stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower Company and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan DocumentAgreement. The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (w) any transaction permitted under Section 10.6, (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash Cash and Cash Equivalents in the normal course of the day-to-day business activities of the Borrower Company and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower Company or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower Company or any wholly owned Subsidiary Guarantor of the BorrowerCompany;
(c) the capital stock Capital Stock of any Subsidiary of the Borrower Company may be sold, transferred or otherwise disposed of (including by way of consolidation or merger) (i) to the Borrower Company or any wholly owned Subsidiary Guarantor of the BorrowerCompany or (ii) so long as such transaction results in an Obligor receiving the proceeds of such disposition, to any other Person, provided, that in the case of this clause (ii), if such Subsidiary is a Subsidiary Guarantor or holds any Portfolio Investments, the Company would not have been prohibited from disposing of any such Portfolio Investments to such other Person under any other term of this Agreement;
(d) the Obligors may sell, transfer or otherwise dispose Dispose of Investments (other than to a Financing Subsidiary) so long as after giving permitted by Section 6.03(d) of the Bank Credit Agreement as in effect to such sale, transfer on the Execution Date or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Baseunder a similar provision in a Replacement Facility;
(e) the Obligors may sell, transfer or otherwise dispose Dispose of Investments to a Financing Subsidiary so long as (ipermitted by Section 6.03(e) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt AmountBank Credit AG Twin Brook Capital Income Fund Master Note Purchase Agreement Agreement as in effect on the Execution Date or under a similar provision in a Replacement Facility;
(f) the Borrower Company may merge or consolidate with (or acquire all or substantially all of the assets of) any other Person so long as (i) the Borrower Company is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default or Event of Default shall have occurred or be continuing; and;
(g) the Borrower Company and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal yearyear or the amount set forth in a similar provision in a Replacement Facility; provided that, in no event shall the Company enter in any transaction of merger or consolidation or amalgamation, or effect any internal reorganization, if the surviving entity would be organized under any jurisdiction other than a jurisdiction of the United States.
Appears in 2 contracts
Sources: Master Note Purchase Agreement (TPG Twin Brook Capital Income Fund), Master Note Purchase Agreement (AG Twin Brook Capital Income Fund)
Fundamental Changes. The Borrower will not, nor and will it not permit any of the Subsidiary Guarantors to, enter (i) whether pursuant to a Delaware LLC Division, Delaware LP Division or otherwise, merge into or consolidate with any transaction of merger or consolidation or amalgamationother Person, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors toother Person to merge into or consolidate with it, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, (ii) sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions, ) all or substantially all/any substantial part of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), but excluding (xiii) assets whether pursuant to a Delaware LLC Division, Delaware LP Division or otherwise, liquidate or dissolve, (other than Investmentsiv) sold divide into two or disposed of in more Persons, including becoming a Delaware Divided LLC or Delaware Divided LP (whether or not the ordinary course of business original Person survives such division) or (including v) create, or reorganize into, one or more series pursuant to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) belowa Delaware LLC Division or Delaware LP Division, Investments. Notwithstanding the foregoing provisions of this Sectionor except that, so long as no Default exists or would result therefrom:
(a) any Subsidiary Guarantor of the Borrower Person may be merged merge or consolidated consolidate with or into (i) the Borrower or any other Subsidiary Guarantor; the Trust, provided that if any such transaction the Borrower or the Trust, as applicable, shall be between a the continuing or surviving Person and there is no Change in Control, or (ii) any one or more other Subsidiaries, including newly formed Subsidiaries, provided that when any Subsidiary Guarantor and is merging or consolidating with or into another Subsidiary that is not a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationPerson;
(b) any Subsidiary Guarantor may merge, dissolve or liquidate, or sell, transfer, lease or otherwise dispose of the any, all or substantially all of its assets, and Borrower may sell, lease, transfer or otherwise dispose of any or all of its direct and indirect Equity Interests in any Subsidiary, provided that if such Subsidiary owns a Property that had been included as an Unencumbered Property, Borrower shall have complied with the requirements of Section 2.23(b) for removal of such Unencumbered Property;
(c) Borrower or Trust may enter into a merger in which such entity is the survivor, and there is no Change in Control and Borrower has complied with Section 6.09, to the extent applicable;
(d) Any Loan Party may sell, transfer, lease or otherwise dispose of any, all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower any other Loan Party (or to any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to Person that becomes concurrently with such sale, transfer transfer, lease or other disposition a Loan Party pursuant to Section 5.11); provided, any Loan Party that is a Wholly-Owned Subsidiary shall only be permitted to sell, transfer, lease or dispose of its assets to another Wholly-Owned Subsidiary pursuant to this clause (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;d); and
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Any Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release that is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower Loan Party may merge into or consolidate with any other Person, or permit any other Person so long as to merge into or consolidate with it, or liquidate or dissolve, pursuant to a Delaware LLC Division or Delaware LP Division and may consummate any transaction described in clauses (iiv) the Borrower is the continuing or surviving entity in such transaction and (iiv) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearabove.
Appears in 2 contracts
Sources: Second Amendment to Credit Agreement (ARES INDUSTRIAL REAL ESTATE INCOME TRUST Inc.), Credit Agreement (BLACK CREEK INDUSTRIAL REIT IV Inc.)
Fundamental Changes. The Borrower will notMerge, nor will it permit dissolve, liquidate, consolidate with or into another Person, or dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except:
(a) any Restricted Subsidiary of the Subsidiary Guarantors to, enter Borrower may be merged with or into the Borrower or any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock ofGuarantor, or be a party to any acquisition ofliquidated, any Personwound up or dissolved, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement all or any other Loan Document. The Borrower will notpart of its business, nor will it permit any of the Subsidiary Guarantors toproperty or assets may be conveyed, conveysold, sellleased, lease, transfer transferred or otherwise dispose disposed of, in one transaction or a series of transactions, to the Borrower or any Guarantor; provided, in the case of such a merger, the Borrower or such Guarantor, as applicable, shall be the continuing or surviving Person and shall not change its jurisdiction of establishment; and
(b) any Restricted Subsidiary of the Borrower that is not a Guarantor may be merged with or into another Restricted Subsidiary of the Borrower, or be liquidated, wound up or dissolved, or all or any part of its assetsbusiness, whether now owned property or hereafter acquiredassets may be conveyed, but excluding (x) assets (other than Investments) sold sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to another Restricted Subsidiary of the Borrower; provided, in the ordinary course case of business (including to make expenditures of cash in the normal course of the day-to-day business activities a merger between a Restricted Subsidiary of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between is not a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor Person and shall not change its jurisdiction of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrowerestablishment;
(c) any Person may merge with or into or consolidate with the capital stock Borrower or a Restricted Subsidiary of the Borrower, if (A) any of the Borrower or a Restricted Subsidiary of the Borrower may be sold, transferred (which Restricted Subsidiary shall have assumed the Obligations of the applicable Guarantor by operation of Law or otherwise disposed of through assumption documents satisfactory to the Administrative Agent to the extent a Guarantor is merged with or into or consolidated with such Restricted Subsidiary and such Guarantor is not the surviving person) is the surviving Person or (B) if the Borrower or any wholly owned Subsidiary Guarantor the applicable Restricted Subsidiary, as the case may be, is not the surviving Person, (x) all Obligations of the BorrowerBorrower or the applicable Restricted Subsidiary, as the case may be, shall have been assumed by the surviving Person by operation of Law or through assumption documents reasonably satisfactory to the Administrative Agent and (y) the surviving Person shall be organized under the laws of any jurisdiction within the United States;
(d) the Obligors Borrower or a Restricted Subsidiary of the Borrower may sell(A) with respect to any Restricted Subsidiary, transfer merge into any other Restricted Subsidiary of the Borrower for the purpose of effecting a change in its state of incorporation in the United States (if all Obligations shall have been assumed by such Restricted Subsidiary by operation of Law or otherwise dispose through assumption documents reasonably satisfactory to the Administrative Agent), and (B) reincorporate in any other jurisdiction in the United States (including the District of Investments (other than to a Financing Subsidiary) so long as after giving effect to such saleColumbia), transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) but must in each case promptly notify the Covered Debt Amount does not exceed the Borrowing BaseAdministrative Agent thereof;
(e) the Obligors any Restricted Subsidiary may sellenter into any merger, transfer consolidation or otherwise dispose of Investments similar transaction with another Person to effect a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amounttransaction permitted under Section 6.6;
(f) the Borrower any Immaterial Subsidiary may merge liquidate or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuingdissolve voluntarily; and
(g) transactions permitted under Sections 6.6 and 6.8 shall be permitted. Notwithstanding anything in this Section 6.7 to the Borrower and each contrary, in no event will any Credit Party, (directly or indirectly through one or a series of the Subsidiary Guarantors may transactions) sell, leasetransfer, transfer assign or otherwise dispose of equipment grant an exclusive license with respect to or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in contribute any fiscal yearmaterial Intellectual Property to any non-Credit Party.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (2U, Inc.), Term Loan Credit and Guaranty Agreement (2U, Inc.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the 91 Revolving Credit Agreement terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Portfolio Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower Obligor may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of or the Subsidiary Guarantors other Obligors may dissolve or liquidate any Immaterial Subsidiary;
(h) the Obligors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement, Senior Secured Revolving Credit Agreement (Carlyle GMS Finance, Inc.)
Fundamental Changes. The Borrower will notMerge into or consolidate with any other Person, nor will it or permit any of the Subsidiary Guarantors to, enter other Person to merge into any transaction of merger or consolidation or amalgamationconsolidate with it, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions, any part ) all or substantially all of its assetsassets (in each case, whether now owned or hereafter acquired), but excluding or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(ai) any Subsidiary Guarantor of the any Borrower may be merged or consolidated with or merge into such Borrower in a transaction in which such Borrower is the Borrower surviving entity, (ii) any Subsidiary of Holdings may merge into Holdings or any other Subsidiary Guarantor; of Holdings (provided that (A) if Kmart Corp. is a party to such merger, such merger shall be with Holdings, Kmart or a direct Subsidiary of Kmart Corp. and Kmart Corp. shall be the continuing or surviving entity, (B) if any such transaction shall be between a Subsidiary Guarantor and is a wholly owned Subsidiary Guarantorparty to such merger (other than with a Borrower or Holdings), the wholly owned such Subsidiary Guarantor shall be the continuing or surviving corporation;
entity or the continuing or surviving entity shall become a Subsidiary Guarantor and (bC) if SRAC is a party to such merger, then Sears shall comply with the requirements of Section 6.01(d)), (iii) any Subsidiary Guarantor of Holdings other than the Borrower Borrowers may sell, leasetransfer, transfer lease or otherwise dispose of any or all of its assets to any Borrower, to Holdings or to a Subsidiary of Holdings (upon voluntary liquidation provided that if such sale or otherwise) to transfer includes Inventory, Credit Card Accounts Receivable or Related Intellectual Property and the transferee is not the Borrower or any wholly owned Holdings, the transferee shall be a Subsidiary Guarantor of the Borrower;
Guarantor), (civ) the capital stock of any Subsidiary of Holdings other than the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors Borrowers may sell, transfer transfer, lease or otherwise dispose of Investments its assets to a Person that is not a Subsidiary through transactions which are undertaken in the ordinary course of its business or determined by Holdings or the Borrowers in good faith to be in the best interests of Holdings, the Borrowers and their Subsidiaries, (v) any Subsidiary of Holdings other than to a Financing Subsidiarythe Borrowers (except, in the case of SRAC, as provided in Section 6.01(d)) so long as after giving effect to such sale, transfer may liquidate or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base dissolve if Holdings and the Borrower delivers Borrowers determine in good faith that such liquidation or dissolution is in the best interests of Holdings, the Borrowers and their Subsidiaries and is not materially disadvantageous to the Administrative Agent a certificate of a Financial Officer to such effect Lenders and (iivi) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount Holdings or any Subsidiary of Holdings may merge with a Person that is not a Subsidiary of Holdings immediately prior to such release is not diminished merger if, in the case of any merger involving Holdings, a Borrower or a Subsidiary Guarantor, Holdings, such Borrower or such Subsidiary Guarantor, as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower applicable, is the continuing or surviving entity or, in such transaction and (ii) at the time thereof and after giving effect theretocase of any merger involving a Subsidiary Guarantor, no Default the continuing or surviving entity shall have occurred or be continuing; and
(g) the Borrower and each of the become a Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 Guarantor in any fiscal yearaccordance with Section 6.01(i)(ii).
Appears in 2 contracts
Sources: Credit Agreement (Sears Roebuck Acceptance Corp), Credit Agreement (Kmart Holding Corp)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve or divide itself (or suffer any liquidation liquidation, dissolution or dissolutiondivision). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock Capital Stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (xi) any transaction permitted under Section 6.05 or 6.12; and (ii) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash and Cash Equivalents in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments). Notwithstanding the foregoing provisions of this SectionSection 6.03:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the BorrowerGuarantor;
(c) the capital stock Capital Stock of any Subsidiary of the Borrower may be sold, transferred (including a deemed transfer resulting from a division or plan of division) or otherwise disposed of (including by way of consolidation or merger)
(i) to the Borrower or any wholly owned Subsidiary Guarantor of the BorrowerBorrower or (ii) so long as such transaction results in an Obligor receiving the proceeds of such disposition, to any other Person; provided that in the case of this clause (ii), (x) if such Person is an Affiliate of the Borrower that is not an Obligor, such transaction shall be at prices and on terms and conditions, taken as a whole, not materially less favorable to such Obligor other than in good faith is believed to be obtained on an arm’s-length basis from unrelated third parties, and (y) if such Subsidiary is a Subsidiary Guarantor or holds any Portfolio Investments, the Borrower would not have been prohibited from disposing of all such Portfolio Investments and all other assets of such Subsidiary in one transaction to such other Person under any other term of this Agreement;
(d) the Obligors may sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose Dispose of Investments (other than to a Financing SubsidiarySubsidiary or Excluded Asset) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansConcurrent Transaction) (x) the Covered Debt Amount does not exceed the Borrowing BaseBase or (y) if such sale, transfer or other disposition is made pursuant to, and in accordance with, a plan submitted and accepted in accordance with clause (e) of Article VII or, if the Administrative Agent otherwise consents in writing, the amount by which the Covered Debt Amount exceeds the Borrowing Base is reduced thereby;
(e) the Obligors may sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose Dispose of Investments to a (A) an Immaterial Subsidiary or (B) Financing Subsidiary or Excluded Asset so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansConcurrent Transaction) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release sale, transfer or other disposition is not diminished as a result of such release sale, transfer or other disposition or (y) the Adjusted Gross Borrowing Base immediately after giving effect to such release sale, transfer or other disposition is at least 110% of the Covered Debt Amount; provided that, for the purposes of this clause (B)(ii) and in connection with the organization of any CLO Security, the Borrowing Base, Adjusted Gross Borrowing Base and the Covered Debt Amount, as applicable, shall be tested as of the pricing date for such CLO Security;
(f) the Borrower may merge or consolidate with with, or acquire all or substantially all of the assets of, any other Person (including any Subsidiary Guarantor) so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect theretothereto and any Concurrent Transaction, no Specified Default or Event of Default shall have occurred or be continuing; andprovided that, in no event shall the Borrower enter in any transaction of merger or consolidation or amalgamation, or effect any internal reorganization, if the surviving entity would be organized under any jurisdiction other than a jurisdiction of the United States;
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 2,500,000 in any fiscal year;
(h) the Obligors may transfer assets to an Excluded Asset or a Financing Subsidiary for the sole purpose of facilitating the transfer of assets (x) from one Excluded Asset or Financing Subsidiary (or a Subsidiary that was an Excluded Asset or a Financing Subsidiary immediately prior to such disposition) to another Excluded Asset or Financing Subsidiary, directly or indirectly through such Obligor (such assets, the “Transferred Assets”); provided that (i) no Event of Default exists and is continuing at such time, (ii) immediately after giving effect to such transfer and any Concurrent Transaction, the Covered Debt Amount shall not exceed the Borrowing Base at such time, (iii) the Transferred Assets were transferred to such Obligor by the transferor Financing Subsidiary on the same Business Day that such assets are transferred by such Obligor to the transferee Excluded Asset or Financing Subsidiary and (iv) following such transfer such Obligor has no liability, actual or contingent, with respect to the Transferred Assets other than Standard Securitization Undertakings and Permitted SBIC Guarantees not prohibited by Section 6.01 (for the avoidance of doubt, in determining for the purposes of this Agreement whether any Obligor has received Net Cash Proceeds in respect of any transaction involving a Transferred Asset, the transfer of such Transferred Asset to and from such Obligor shall be deemed to be a single transaction) and (y) in connection with a Back-to-Back Transaction;
(i) the Borrower may dissolve or liquidate any Subsidiary Guarantor so long as in connection with such dissolution or liquidation, any and all of the assets of such Subsidiary Guarantor shall be distributed or otherwise transferred to an Obligor; and
(j) the Borrower may deposit and use cash to purchase shares of common stock of the Borrower in connection with a Tender Offer to the extent such purchase would be, at the time approved by the board of directors of the Borrower, permitted pursuant to Section 6.05.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (Bain Capital Private Credit), Revolving Credit Agreement (Bain Capital Private Credit)
Fundamental Changes. The Borrower will notGuarantor shall not (a) wind up, nor will it permit any of the Subsidiary Guarantors toliquidate, or dissolve its affairs, (b) enter into any transaction of merger or consolidation or amalgamationconsolidation, unless the surviving entity, if other than the Guarantor, assumes all of the obligations and satisfies all of the representations, warranties and covenants of Guarantor hereunder, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, c) sell, lease, transfer or otherwise dispose ofof (or agree to do any of the foregoing) all or substantially all of its property or assets, except in one a transaction or a series of transactionstransactions in connection with any reorganization of Guarantor and/or its Subsidiaries after which Guarantor (or any surviving entity) shall remain in compliance with the representations, warranties and covenants contained herein, including Section 5 and any part of its assetssuch transferee(s) shall be or become jointly and severally liable with Guarantor (or any surviving entity or entities) for Guarantor’s obligations hereunder, whether now owned without Buyer’s prior written consent, provided that the foregoing shall not restrict Seller’s ability to concurrently repurchase all Purchased Assets as set forth in the Transaction Documents, and shall not restrict Guarantor from (i) originating, buying, or hereafter acquiredselling real estate mortgage, but excluding mezzanine, or other loans (x) assets (other than Investments) sold or disposed of any interest therein), or accepting full or partial payment in respect thereof, or releasing any collateral securing loans, in each case in the ordinary course of Guarantor’s business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and operations (ii) either admitting any shareholders to Guarantor after the date hereof, (xiii) consenting to or otherwise effecting the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result transfer, redemption or withdrawal of such release any shareholder, or (yiv) making or granting any modification to or waiver under the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person Guarantor’s organizational documents, so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and as, after giving effect thereto, in the case of preceding clauses (ii), (iii) and (iv) no Default Change of Control shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearoccur.
Appears in 2 contracts
Sources: Payment Guaranty, Payment Guaranty (Benefit Street Partners Realty Trust, Inc.)
Fundamental Changes. (a) The Borrower Company will not, nor and will it not permit any of the Subsidiary Guarantors its Subsidiaries to, enter merge into or consolidate with any transaction of merger or consolidation or amalgamationother Person, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business other Person to merge into or property fromconsolidate with it, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions, any part ) all or substantially all of its assets, assets (whether now owned or hereafter acquired), but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) belowliquidate or dissolve, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that except that, if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and immediately after giving effect thereto, thereto no Default shall have occurred or and be continuing; and
, (gi) any Person may merge into the Borrower and each of Company in a transaction in which the Company is the surviving corporation, (ii) any Person may merge into any Subsidiary Guarantors in a transaction in which the surviving entity is a Wholly Owned Subsidiary, (iii) any Subsidiary may sell, leasetransfer, transfer lease or otherwise dispose of equipment its assets to the Company or other property to a Wholly Owned Subsidiary and (iv) any Subsidiary may merge into or assets consolidate with another Person, or may liquidate or dissolve, if the Company determines in good faith that do such merger, consolidation, liquidation or dissolution is in the best interests of the Company and is not consist materially disadvantageous to the Lenders; provided that a Borrowing Subsidiary may not merge, consolidate, liquidate or dissolve unless, in addition to the foregoing conditions, the surviving entity, or the entity into which such Borrowing Subsidiary liquidates or dissolves, is or becomes a Borrower and assumes all the obligations of Investments so long as the aggregate amount such Borrowing Subsidiary hereunder and under its Borrowing Subsidiary Agreement (if any).
(b) The Company will not, and will not permit any of all such salesits Subsidiaries to, leases, transfer and dispositions does not exceed $5,000,000 engage to any material extent in any fiscal yearbusiness other than businesses of the type conducted by the Company and its Subsidiaries on the date hereof and businesses reasonably related thereto.
Appears in 2 contracts
Sources: Credit Agreement (Fort James Corp), Credit Agreement (Fort Howard Corp)
Fundamental Changes. The Borrower will not(a) No Borrowing Base Covenant Subsidiary shall, nor will shall it permit any of the Subsidiary Guarantors its Subsidiaries (other than an Unrestricted Real Property Subsidiary) to, enter directly or indirectly, merge, dissolve, liquidate, consolidate with or into any transaction of merger or consolidation or amalgamationanother Person, or liquidate, wind up or dissolve itself Dispose of (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, whether in one transaction or in a series of transactions, any part ) all or substantially all of its assets, assets (whether now owned or hereafter acquired) to or in favor of any Person, but excluding except that (x1) this Section 7.04(a) shall not restrict or prohibit any Disposition permitted under Section 7.05(a) or any Restricted Payment permitted under Section 7.06, and (2) so long as no Default exists or would result therefrom, any Secured Guarantor or Subsidiary thereof may merge, liquidate or dissolve into, or consolidate with, or Dispose of assets (to, any one or more other than Investments) sold or disposed Subsidiaries of the Borrower; provided that, in the ordinary course case of business this clause (including to make expenditures of cash in the normal course of the day-to-day business activities 2), (i) if any Secured Guarantor is merging with, liquidating into or consolidating with another Subsidiary of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between is not a Subsidiary Guarantor and a wholly owned Subsidiary Secured Guarantor, the wholly owned Subsidiary such Secured Guarantor shall be the continuing or surviving corporation;
Person, (bii) if any Secured Guarantor is Disposing of assets to another Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
, such other Subsidiary is also a Secured Guarantor, (ciii) the capital stock of if any Borrowing Base Subsidiary is merging with, liquidating into or consolidating with another Subsidiary of the Borrower may that is not a Borrowing Base Subsidiary, such Borrowing Base Subsidiary shall be soldthe continuing or surviving Person, transferred or otherwise disposed (iv) if any Borrowing Base Subsidiary is Disposing of assets to the Borrower or any wholly owned another Subsidiary Guarantor of the Borrower;
, such other Subsidiary is also a Borrowing Base Subsidiary, (dv) if the Obligors may sellEquity Interests of any Person involved in such merger, transfer liquidation or otherwise dispose consolidation are Collateral under the Security Agreement, then the Equity Interests of Investments the survivor of such merger or consolidation, or Equity Interests of the Person to whom the other Subsidiary has liquidated into, as applicable, shall be pledged as Collateral under the Security Agreement (other than to a Financing Subsidiary) so long as after giving effect the same extent pledged prior to such saletransaction), transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (ivi) after giving effect to such saletransaction or series of transactions, transfer or other disposition 100% of the Equity Interests (and any concurrent acquisitions or, in the case of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the a Borrowing Base Subsidiary that is an Excluded Foreign Subsidiary, 100% of the non-voting Equity Interests (if any) and 65% of the Borrower delivers voting Equity Interests) of each Borrowing Base Subsidiary involved in or affected by such transaction or series of transactions (other than any Encumbered Real Property Borrowing Base Subsidiary) and of each Encumbered Real Property Pledged Subsidiary are subject to a perfected first priority Lien (subject to Permitted Equity Encumbrances) in favor of the Administrative Agent for the benefit of the Secured Parties and each such Secured Guarantor and Borrowing Base Subsidiary is a certificate Wholly Owned Subsidiary of the Borrower and (vii) such transaction is permitted under Section 2.15.
(b) The Borrower shall not, nor shall it permit any of its Subsidiaries (other than any Borrowing Base Covenant Subsidiary and any Subsidiary of a Financial Officer Borrowing Base Covenant Subsidiary) to, directly or indirectly, merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default has occurred and is continuing or would result therefrom:
(i) any such effect and (ii) either Subsidiary may liquidate or dissolve into, or Dispose of all or substantially all its assets to (x) the amount by which the another Subsidiary that is not a Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release Covenant Subsidiary or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amounta Loan Party;
(fii) the Borrower any such Subsidiary may merge into or consolidate with any other Person so long as or permit any other Person to merge into or consolidate with it; provided, however, that in each case, immediately after giving effect thereto in the case of any such merger to which any Specified Loan Party is a party, the survivor is, or upon such merger will by operation of law or otherwise be, a Specified Loan Party; and
(iiii) any Disposition (including any Disposition of Equity Interests) by any such Subsidiary that is permitted by clause (b)(ii) or (b)(iv) of Section 7.05 is permitted. provided that, notwithstanding the foregoing, (x) clauses (b)(i), (ii) and (iii) shall not permit any transaction unless after giving effect thereto, each Guarantor involved in or affected by such transaction will be a Wholly Owned Subsidiary of the Borrower, (y) clause (b)(ii) shall not permit any transaction unless (1) such transaction shall not in the reasonable opinion of the Borrower is at the continuing or surviving entity in time of such transaction and (iior the commitment to enter into such transaction), be reasonably expected to result in a Material Adverse Effect, (2) at the time thereof and after giving effect theretoof such transaction, no Default shall have occurred and be continuing or be continuing; and
would result therefrom, and (g3) taking into account such transaction, the Borrower and each its Subsidiaries shall be in compliance, on a pro forma basis, with the provisions of the Section 7.12 and (z) nothing in this clause (b) will permit a transaction that is not permitted by Section 2.15.
(c) The Borrower shall not permit any Unrestricted Real Property Subsidiary Guarantors may sellto, leasedirectly or indirectly, transfer merge, dissolve, liquidate, consolidate with or otherwise dispose into another Person, or Dispose of equipment (whether in one transaction or other property in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, in a transaction that do is not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearpermitted by Section 2.15.
Appears in 2 contracts
Sources: Credit Agreement (Starwood Property Trust, Inc.), Credit Agreement (Starwood Property Trust, Inc.)
Fundamental Changes. The Borrower will notMerge, nor will it permit any of the Subsidiary Guarantors todissolve, enter liquidate, consolidate with or into any transaction of merger or consolidation or amalgamationanother Person, or liquidate, wind up or dissolve itself Dispose of (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, whether in one transaction or in a series of transactions, any part ) all or substantially all of its assets, assets (whether now owned or hereafter acquired) to or in favor of any Person, but excluding (x) assets (other than Investments) sold except that, so long as no Default exists or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Sectionwould result therefrom:
(a) any Subsidiary Guarantor of may merge with (i) the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary GuarantorBorrower; provided that if any such transaction the Borrower shall be between a the continuing or surviving Person, or (ii) any one or more other Subsidiaries; provided that when any Subsidiary Guarantor and a wholly owned Subsidiary Guarantoris merging with another Subsidiary, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;Person to the extent necessary to cause (A) the pro forma consolidated EBITDA (measured on the same basis as “Consolidated EBITDA” provided herein, but for the Non-Guarantor Subsidiaries only) of the Non-Guarantor Subsidiaries for the most recently ended period of four consecutive fiscal quarters of the Borrower not to exceed 30% of the pro forma Consolidated EBITDA of the Borrower and all its Subsidiaries for such period and (B) the pro forma consolidated total assets of the Non-Guarantor Subsidiaries as of the last day of the most recently ended period of four consecutive fiscal quarters not to exceed 40% of the pro forma consolidated total assets of the Borrower and all its Subsidiaries as of such date, in each case after giving effect to such merger and any other such merger consummated since the end of such period as though such merger(s) had been made as of the first day of such period; and
(b) any Subsidiary Guarantor may Dispose of the Borrower may sell, lease, transfer all or otherwise dispose of any or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned to another Subsidiary; provided that if the transferor in such a transaction is a Subsidiary Guarantor, then the transferee must either be the Borrower or a Subsidiary Guarantor to the extent necessary to cause (i) the pro forma consolidated EBITDA (measured on the same basis as “Consolidated EBITDA” provided herein, but for the Non-Guarantor Subsidiaries only) of the Borrower;
(c) Non-Guarantor Subsidiaries for the capital stock most recently ended period of any Subsidiary four consecutive fiscal quarters of the Borrower may be sold, transferred or otherwise disposed not to exceed 30% of to the pro forma Consolidated EBITDA of the Borrower or any wholly owned Subsidiary Guarantor and all its Subsidiaries for such period and (ii) the pro forma consolidated total assets of the Borrower;
(d) Non-Guarantor Subsidiaries as of the Obligors may selllast day of the most recently ended period of four consecutive fiscal quarters not to exceed 40% of the pro forma consolidated total assets of the Borrower and all its Subsidiaries as of such date, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as in each case after giving effect to such sale, transfer or other disposition (Disposition and any concurrent acquisitions of Investments or payment of outstanding Loans) other such Disposition consummated since the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result end of such release or (yperiod as though such Disposition(s) the Borrowing Base immediately after giving effect to such release is at least 110% had been made as of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in first day of such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearperiod.
Appears in 2 contracts
Sources: Credit Agreement (Mueller Industries Inc), Credit Agreement (Mueller Industries Inc)
Fundamental Changes. The Borrower Company will not, nor will it the Company permit any of the Subsidiary Guarantors its Subsidiaries (other than an Immaterial Subsidiary) to, enter merge into or consolidate with any transaction of merger or consolidation or amalgamationother Person, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of other Person to merge into or consolidate with the Subsidiary Guarantors to, acquire any business Company or property fromits Subsidiaries, or capital stock ofsell, or be a party to any acquisition oftransfer, any Person, except for purchases or acquisitions of Investments lease (other than leases and other assets charters in the normal ordinary course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer business) or otherwise dispose of, of (in one transaction or in a series of transactions, ) all or any substantial part of the assets of the Company, or all or any substantial part of the stock of any of its assetsSubsidiaries (in each case, whether now owned or hereafter acquired), but excluding (x) assets (other than Investments) sold or disposed of in liquidate or dissolve, except that, if at the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower time thereof and its Subsidiaries) immediately after giving effect thereto no Default shall have occurred and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Sectionbe continuing:
(a1) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or merge into the Borrower or any other Subsidiary Guarantor; provided that if any such Company in a transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, in which the wholly owned Subsidiary Guarantor shall be Company is the continuing or surviving corporation;
(b2) any Subsidiary Guarantor of may merge into any other Subsidiary in a transaction in which the Borrower consolidated ownership interest percentage in the surviving Subsidiary is no less than the consolidated ownership interest percentage in either predecessor entity;
(3) any Subsidiary may sell, leasetransfer, transfer lease or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower Company or any wholly owned Subsidiary Guarantor of the Borrowerto another Subsidiary;
(c4) the capital stock of any Subsidiary may liquidate or dissolve if the Board of Directors determines in good faith that such liquidation or dissolution is in the Borrower may be sold, transferred or otherwise disposed of Company’s best interests and is not materially disadvantageous to the Borrower or any wholly owned Subsidiary Guarantor of the BorrowerHolders;
(d5) the Obligors Company and any Subsidiary may sell, transfer or otherwise dispose of Investments any of the Company or its Subsidiaries’ assets (in the ordinary course of business or otherwise) in any transaction or series of transactions so long as (A) the aggregate market value of all assets so sold, transferred, leased or otherwise disposed of under this clause (5) during any fiscal year does not exceed 25% of the aggregate market value of all of the Company and its Subsidiaries’ assets, on a consolidated basis (excluding intercompany transactions), on the last day of the immediately preceding fiscal year and (B) the Company receives, or the relevant Subsidiary receives, consideration at the time of such sale, transfer, lease or other than disposition at least equal to a Financing Subsidiarythe fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the assets subject to such sale, transfer, lease or other disposition;
(6) the Company and any of its Subsidiaries may enter into any sale, transfer or disposition that is followed by the leasing back of the asset sold, transferred or disposed of; and
(7) so long as after giving effect to such saleno Change of Control would result therefrom, transfer or other disposition (the Company and any concurrent acquisitions of Investments its Subsidiaries may acquire the assets or payment interests of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sellany Person, transfer by way of merger or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearconsolidation.
Appears in 2 contracts
Sources: First Supplemental Indenture (Atlas Corp.), First Supplemental Indenture (Atlas Corp.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Portfolio Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with with, or acquire all or substantially all of the assets of, any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (TPG Specialty Lending, Inc.), Senior Secured Revolving Credit Agreement (TPG Specialty Lending, Inc.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve or divide itself (or suffer any liquidation liquidation, dissolution or dissolutiondivision). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Portfolio Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with with, or acquire all or substantially all of the assets of, any other Person (including any Subsidiary Guarantor) so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; provided that, in no event shall the Borrower enter in any transaction of merger or consolidation or amalgamation, or effect any internal reorganization, if the surviving entity would be organized under any jurisdiction other than a jurisdiction of the United States; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (Owl Rock Capital Corp), Senior Secured Revolving Credit Agreement (Owl Rock Technology Finance Corp.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) Neither the Company nor any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person or Dispose of all or substantially all of its assets to any Person unless (A) no Event of Default shall be continuing after giving effect to such transaction and (B)(x) such Borrower shall be the continuing entity or (y)
(1) the Person formed by or surviving such merger or consolidation, or the transferee of such assets, shall be an entity organized or existing under the laws of the United States, any state thereof, or the District of Columbia that expressly assumes all the obligations of such Borrower under the Loan Documents pursuant to a supplement or amendment to the Loan Documents reasonably satisfactory to the Administrative Agent, (2) the Company and, during any Reinstated Guarantee Period, each Subsidiary Guarantor shall have reaffirmed its obligations under the Loan Documents and (3) the Administrative Agent shall have received an opinion of counsel (which may be internal counsel to a Loan Party) which is reasonably satisfactory to the Administrative Agent and consistent with the opinions delivered on the Closing Date with respect to such Borrower; provided, that, so long as no Obligations are owed by the applicable Subsidiary Borrower, the Company may elect for such Subsidiary to cease to be a “Borrower” hereunder pursuant to Section 10.1(d) hereof and, thereafter, such Subsidiary shall not be subject to the restrictions contained in this paragraph.
(b) During any Reinstated Guarantee Requirement Period, no Subsidiary that is a Subsidiary Guarantor shall merge or consolidate with any other Person or dispose of all or substantially all of its assets to any Person unless (i) the Borrower is Company or a Subsidiary Guarantor shall be the continuing entity or surviving entity in shall be the transferee of such transaction and assets, (ii) at (A) the time thereof Person formed by or surviving such merger or consolidation, or the transferee of such assets, shall be an entity organized or existing under the laws of the United States, any state thereof, or the District of Columbia that expressly assumes all the obligations of such other Subsidiary Guarantor under the Loan Documents pursuant to a supplement or amendment to each applicable Loan Document reasonably satisfactory to the Administrative Agent, (B) the Company and after giving effect thereto, no Default each then-remaining Loan Party shall have occurred or be continuing; and
reaffirmed its obligations under the Loan Documents and (gC) the Borrower and each Administrative Agent shall have received an opinion of counsel (which may be internal counsel to a Loan Party) which is reasonably satisfactory to the Subsidiary Guarantors may sellAdministrative Agent and, leaseif applicable, transfer consistent with the opinions delivered on the Closing Date with respect to such Loan Party, or otherwise dispose of equipment or other property or assets that do (iii) in connection with an asset sale not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearprohibited by Section 7.3.
Appears in 2 contracts
Sources: 364 Day Revolving Credit Agreement (General Motors Financial Company, Inc.), 364 Day Revolving Credit Agreement (General Motors Co)
Fundamental Changes. The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, Person except for purchases or acquisitions of Investments inventory and other assets property to be sold or used in the normal ordinary course of the day-to-day business activities of the Borrower business, Investments permitted under Section 7.05 and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan DocumentCapital Expenditures. The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsbusiness or property, whether now owned or hereafter acquiredacquired (including, without limitation, receivables and leasehold interests, but excluding (x) assets obsolete or worn out property, tools or equipment no longer used or useful in its business and (y) any inventory or other than Investments) property sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day and on ordinary business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investmentsterms). Notwithstanding the foregoing provisions of this SectionSection 7.04:
(a) any Restricted Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower Company or any other Subsidiary GuarantorRestricted Subsidiary; provided that (i) if any such transaction shall be between a Restricted Subsidiary Guarantor and a wholly owned Wholly Owned Restricted Subsidiary Guarantorof the Company, a Wholly Owned Restricted Subsidiary shall be the continuing or surviving corporation and (ii) if any such transaction shall be between the Company and a Restricted Subsidiary, the wholly owned Subsidiary Guarantor Company shall be the continuing or surviving corporation;
(b) any Restricted Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) to the Borrower Company or any wholly owned Wholly Owned Restricted Subsidiary Guarantor of the BorrowerCompany;
(c) the capital stock of any Restricted Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower Company or any wholly owned Wholly Owned Restricted Subsidiary Guarantor of the BorrowerCompany;
(d) the Obligors Company or any of its Restricted Subsidiaries may sellsell assets (including, transfer or otherwise dispose without limitation, capital stock issued by any of Investments their respective Subsidiaries) for fair market value provided that (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loansi) the Covered Debt Amount does aggregate amount of Disposition Investments and other non-cash proceeds (valued at the fair market value thereof determined in good faith by the Board of Directors of the Company) received by the seller in the sale of any asset shall not exceed 25% of the Borrowing Basetotal sales price for such asset (including (A) the amount of liabilities, if any, assumed as a portion of the sales price and (B) the amount of any repayment by the seller of the principal of Indebtedness to the extent that (X) such Indebtedness is secured by a Lien on such asset and (Y) the seller is required by the transferee of (or holder of a Lien on) such assets to repay such principal as a condition to the purchase of such asset) and (ii) no more than 10% of EBITDA for any fiscal year of the Company shall be attributable to all such assets so sold in the following fiscal year of the Company;
(e) the Obligors Company or any Wholly Owned Restricted Subsidiary of the Company may sellacquire any business, transfer and the related assets, of any other Person including of an Unrestricted Subsidiary (whether by way of purchase of assets or otherwise dispose of Investments to a Financing Subsidiary stock, by merger or consolidation or otherwise), so long as as:
(i) such Acquisition (if by purchase of assets, merger or consolidation) shall be effected in such manner so that the acquired business, and the related assets, are owned either by the Company or a Wholly Owned Restricted Subsidiary of the Company and, if effected by merger or consolidation involving the Company, the Company shall be the continuing or surviving entity and, if effected by merger or consolidation involving a Wholly Owned Restricted Subsidiary of the Company, such Wholly Owned Restricted Subsidiary shall be the continuing or surviving entity;
(ii) such Acquisition (if by purchase of stock) shall be effected in such manner so that the acquired entity becomes a Wholly Owned Restricted Subsidiary of the Company;
(iii) after giving effect to such saleAcquisition the Company shall be in compliance with Section 7.09 (the determination of such compliance to be calculated on a pro forma basis, transfer or other disposition (as at the end of and for the period of four fiscal quarters most recently ended prior to the date of such Acquisition for which financial statements of the Company and its Restricted Subsidiaries are available, under the assumption that such Acquisition shall have occurred, and any concurrent acquisitions Indebtedness in connection therewith shall have been incurred, at the beginning of Investments or payment the applicable period, and under the assumption that interest for such period had been equal to the actual weighted average interest rate in effect for the Loans hereunder on the date of outstanding Loanssuch Acquisition) and, in the Covered Debt Amount does not event that the aggregate amount of expenditures in respect of such Acquisition shall exceed $100,000,000, the Borrowing Base and the Borrower delivers Company shall have delivered to the Administrative Agent a certificate of a Financial Officer showing calculations in reasonable detail to such effect and demonstrate compliance with this subclause (iiiii); and
(iv) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof Acquisition and after giving effect thereto, no Default shall have occurred or and be continuing;
(f) the Company and its Restricted Subsidiaries may dispose of any one or more outdoor properties in exchange for one or more other outdoor properties (including logo signage businesses), so long as the percentage of the aggregate EBITDA attributable to the properties so disposed of during any single fiscal year does not exceed 10% of the aggregate EBITDA of the Company and its Restricted Subsidiaries for the most recently-ended fiscal year (such EBITDA to be determined for these purposes without giving effect to the last paragraph of the definition of such term in Section 1.01); and
(g) the Borrower and each of the Subsidiary Guarantors may sellany sale, leaseassignment, transfer or otherwise dispose other disposition of equipment property by the Company or other property or assets any Restricted Subsidiary that do not consist of Investments so long would be permitted as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearan Investment pursuant to Section 7.05(a) shall be permitted under this Section 7.04.
Appears in 2 contracts
Sources: Credit Agreement (Lamar Media Corp/De), Credit Agreement (Lamar Media Corp/De)
Fundamental Changes. The Borrower Except for (a) the liquidation of Thunder Press into its parent company, ▇▇▇▇▇▇ Publishing Group, Inc., and (b) the merger of ▇▇▇▇▇▇▇ Publications Corporation with and into TL Enterprises, Inc., each of which shall occur on or prior to the Effective Date, no Credit Party will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower No Credit Party will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, Person except for purchases or acquisitions of Investments inventory and other assets property to be sold or used in the normal ordinary course of the day-to-day business activities of the Borrower business, Investments permitted under Section 7.5 and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan DocumentCapital Expenditures permitted under Section 7.9(e). The Borrower No Credit Party will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any material part of its assetsbusiness or property, whether now owned or hereafter acquiredacquired (including, without limitation, receivables and leasehold interests, but excluding (x) assets obsolete or worn-out property, including leasehold interests, no longer used or useful in its business, (y) any inventory or other than Investments) property sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day and on ordinary business activities of the Borrower and its Subsidiaries) terms and (yz) subject Sale-Leaseback Transactions to the provisions of clauses (d) and (e) below, Investmentsextent permitted by Section 7.14. Notwithstanding the foregoing provisions of this SectionSection 7.4:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantoror into the Borrower; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary GuarantorWholly Owned Subsidiary, the wholly owned Wholly Owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor that is a Wholly Owned Subsidiary of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor that is a Wholly Owned Subsidiary of the Borrower;; and
(d) the Obligors any Credit Party may sellconsummate any Acquisition with any other Person (whether by way of purchase of assets or stock, transfer by merger or otherwise dispose of Investments (other than to a Financing Subsidiary) consolidation or otherwise), so long as after giving effect to such sale, transfer or other disposition as:
(i) the aggregate purchase price (including assumed liabilities and any concurrent acquisitions non-cash consideration valued at the fair market value thereof determined in good faith by the Board of Investments or payment Directors of outstanding Loansthe Borrower) paid by the Covered Debt Amount does not Credit Parties for Acquisitions in any fiscal year shall not, without the prior consent of the Required Senior Lenders, exceed the Borrowing Base$15,000,000;
(eii) such Acquisition (if by purchase of assets, merger or consolidation) shall be effected in such manner so that the acquired business, and the related assets, are owned by a Credit Party and, if effected by merger or consolidation involving a Credit Party, the Credit Party shall be the continuing or surviving entity;
(iii) such Acquisition (if by purchase of stock) shall be effected in such manner so that the acquired entity becomes a Wholly Owned Subsidiary of a Credit Party;
(iv) the Obligors may sell, transfer type of business of the business acquired in such Acquisition shall be one of the types of business engaged in by the Credit Parties as of the Effective Date and such business shall be located in the United States or otherwise dispose of Investments to a Financing Subsidiary so long as Canada;
(iv) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) Acquisition the Covered Debt Amount does not exceed the Borrowing Base Credit Parties shall be in compliance with Section 7.9 and the Borrower delivers shall have delivered to the Administrative Agent a certificate of a Financial Officer showing such calculations in reasonable detail to demonstrate such effect and compliance; and
(iivi) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof Acquisition and after giving effect thereto, no Default shall have occurred or and be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 2 contracts
Sources: Senior Secured Floating Rate Note Purchase Agreement (Affinity Group Holding Inc), Credit Agreement (Affinity Group Holding Inc)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, Person except for purchases or acquisitions of Investments inventory and other property (other than assets and related rights constituting an ongoing business) to be sold or used in the normal ordinary course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan DocumentInvestments permitted under Section 6.04. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsbusiness or property, whether now owned or hereafter acquiredacquired (including receivables and leasehold interests, but excluding (x) assets obsolete or worn-out property, tools or equipment no longer used or useful in its business, (y) any inventory or other than Investments) property sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day and on ordinary business activities of the Borrower and its Subsidiaries) terms and (yz) subject to the provisions of clauses (d) and (e) below, Investmentsany Disposition resulting from a Casualty Event). Notwithstanding the foregoing provisions of this Section, if no Default shall have occurred and be continuing or would result therefrom:
(a) any Restricted Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary GuarantorRestricted Subsidiary; provided that (i) if any such transaction shall be between a Restricted Subsidiary and the Borrower, the Borrower shall be the continuing or surviving entity and (ii) if any such transaction shall be between a Restricted Subsidiary that is a Guarantor and a wholly owned Restricted Subsidiary that is not a Guarantor, the wholly owned Subsidiary such Guarantor shall be the continuing or surviving corporationentity;
(b) any Restricted Subsidiary Guarantor of the Borrower may merge into the Person such Restricted Subsidiary was formed to acquire in connection with the Acquisition or any Permitted Acquisition;
(c) any Restricted Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned other Restricted Subsidiary; provided that if any such transaction shall be between a Restricted Subsidiary that is a Guarantor and a Restricted Subsidiary that is not a Guarantor, such Guarantor shall be the recipient of the Borrowersuch property;
(cd) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing BaseGuarantor;
(e) the Obligors Borrower or any Restricted Subsidiary may sellsell to any Governmental Authority for fair market value (as determined by an independent appraisal made by a Person acceptable to the Administrative Agent) (or, transfer if less, the net book value when required by such Governmental Authority) any Facility managed or otherwise dispose of Investments operated by the Borrower or such Restricted Subsidiary pursuant to a Financing Subsidiary Government Contract with such Governmental Authority so long as (i) after giving effect to the aggregate amount of non-cash proceeds from all such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does sales do not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount$10,000,000;
(f) the Borrower or any Restricted Subsidiary may merge sell or consolidate discount without recourse accounts receivable arising in the ordinary course of business in connection with any other Person so long as (i) the Borrower is compromise or collection thereof in the continuing ordinary course of business, provided that the aggregate face or surviving entity in principal amount of all such transaction and (ii) at accounts receivable sold or discounted after the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; anddate hereof may not exceed $10,000,000;
(g) the Borrower and each of the or any Restricted Subsidiary Guarantors may sell, lease, transfer sell or otherwise dispose of equipment assets not otherwise permitted by this Section 6.03; provided that (i) such sale or other property disposition shall be for cash for fair market value (as determined in good faith by the board of directors of the Borrower, provided that, if the board of directors of the Borrower so determines that the fair market value of such assets is equal to or assets that do not consist of Investments so long as greater than $50,000,000, then the fair market value shall be determined by an independent appraisal made by a Person acceptable to the Administrative Agent) and (ii) the aggregate amount book value of all such sales, leases, transfer and dispositions does assets sold or disposed of pursuant to this clause (g) shall not exceed $5,000,000 300,000,000 in the aggregate after the date hereof;
(h) the Borrower or any fiscal yearRestricted Subsidiary may sell any property, business or assets acquired in a Permitted Acquisition to the extent that the same is not related to the construction, design, operation, development or operation of any Facility;
(i) the Borrower or any Restricted Subsidiary may sell Permitted Investments in the ordinary course of business;
(j) the Borrower or any Restricted Subsidiary may make the Acquisition and Permitted Acquisitions; and
(k) any Restricted Subsidiary of the Borrower may be merged or consolidated into any Unrestricted Subsidiary of the Borrower provided that Borrower designates the continuing or surviving entity as an Unrestricted Subsidiary in compliance with Section 5.09(d) hereof. For purposes of this Section 6.03, all determinations of fair market value of any Facility shall include consideration of rights under any Government Contract transferred in connection therewith.
Appears in 2 contracts
Sources: Credit Agreement (Geo Group Inc), Credit Agreement (Geo Group Inc)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors other Obligor to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors other Obligor to, acquire any business or property from, or capital stock Equity Interests of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors other Obligor to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject subject, to the extent applicable, to the provisions of clauses clause (d) and (e) below, InvestmentsPortfolio Investments (to the extent not otherwise included in clause (x) of this Section). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the BorrowerBorrower and may dissolve itself so long as it does not hold any assets;
(c) the capital stock Equity Interests of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments to a Financing Designated Subsidiary under clause (a) of the definition thereof so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansIndebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect to the Administrative Agent and (ii) either (x) the amount by which of any excess availability under the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release sale, transfer or disposition is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release sale, transfer or disposition is at least 110% of the Covered Debt Amount;
(fe) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(gf) the Borrower and each of the Subsidiary Guarantors other Obligors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 3,000,000 in any fiscal year.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (Oaktree Finance, LLC), Senior Secured Revolving Credit Agreement (Oaktree Capital Group, LLC)
Fundamental Changes. The Borrower Holding Company will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, enter merge or consolidate with or into any transaction of merger or consolidation or amalgamationother Person, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business other Person to merge into or property fromwith it or consolidate with it, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions, ) any part of the stock of its assetsSubsidiaries (in each case, whether now owned or hereafter acquired), but excluding (x) assets (other than Investments) sold or disposed liquidate or dissolve itself or any of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) , except that, if at the time of any such event and (y) subject to the provisions immediately after giving effect thereto no Default or Event of clauses (d) Default shall have occurred and (e) below, Investments. Notwithstanding the foregoing provisions of this Sectionbe continuing:
(a) any Wholly-Owned Subsidiary Guarantor of the Borrower may be merged merge or consolidated consolidate with or into the Borrower Holding Company or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationinto another Wholly-Owned Subsidiary;
(b) any Wholly-Owned Subsidiary Guarantor of the Borrower may sell, leasetransfer, transfer lease or otherwise dispose of any or all portion of its assets (upon voluntary liquidation or otherwise) to the Borrower Holding Company or any wholly owned Subsidiary Guarantor of the Borrowerto another Wholly-Owned Subsidiary;
(c) any Wholly-Owned Subsidiary may liquidate or dissolve if the capital stock of any Subsidiary Holding Company determines in good faith that such liquidation or dissolution is in the best interests of the Borrower may be sold, transferred or otherwise disposed of Holding Company and is not materially disadvantageous to the Borrower or any wholly owned Subsidiary Guarantor holders of the BorrowerNotes;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing BaseAcceptable Acquisitions shall be permitted;
(e) the Obligors may selldisposal of Northern States Tire, transfer Inc. shall be permitted, whether by sale of assets or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such salestock, transfer or other disposition (and any concurrent acquisitions of Investments by merger, consolidation, dissolution or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amountliquidation;
(f) any Wholly-Owned Subsidiary may change its entity form to, or otherwise convert to another form of entity, which is also a Wholly-Owned Subsidiary and is a grantor and guarantor under the Borrower may merge Guarantee and Collateral Agreement, or consolidate with engage in any other restructuring, provided that no assets of or ownership interests in any such Wholly-Owned Subsidiary shall be transferred to a Person so long as (i) which is not also a Wholly-Owned Subsidiary and a grantor and guarantor under the Borrower is the continuing or surviving entity in such transaction Guarantee and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuingCollateral Agreement; and
(g) the Borrower Holding Company may merge or consolidate with or into the Company, and each of the Subsidiary Guarantors Company may sell, lease, transfer merge or otherwise dispose of equipment consolidate with or other property or assets that do not consist of Investments so long as into the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearHolding Company."
Appears in 2 contracts
Sources: Note Agreement (TBC Corp), Note Purchase Agreement (TBC Corp)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter Enter into any transaction of merger or consolidation merger, consolidation, restructuring, recapitalization, reorganization or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any Dispose of the Subsidiary Guarantors to, acquire any all or substantially all of its Property or business or property fromamend, modify or capital stock ofotherwise change its name, jurisdiction of organization, organizational number, identification number or be a party to any acquisition of, any PersonFEIN, except for purchases or acquisitions of Investments that, if no Default shall have occurred and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Sectionbe continuing:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; (provided that if any such transaction Borrower shall be between a the continuing or surviving entity) or with or into any Wholly Owned Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned (provided that (i) such Subsidiary Guarantor shall be the continuing or surviving corporationentity or (ii) simultaneously with such transaction, the continuing or surviving entity shall become a Subsidiary Guarantor and Borrower shall comply with Section 5.12 in connection therewith);
(b) Borrower may consolidate with Holdings to effectuate an IPO; provided that (i) such consolidation has been authorized in accordance with terms set forth in the First Lien Credit Agreement, (ii) the survivor of such consolidation (“Successor Borrower”) shall expressly assume all obligations under this Agreement and the other Loan Documents, and each mortgagor, pledgor, grantor, guarantor or other obligor under the Loan Documents shall expressly ratify and confirm its obligations under the Loan Documents, in each case, pursuant to documentation in form and substance satisfactory to Agent, (iii) Agent shall have received such other agreements (including amendments or amendments and restatements of the Loan Documents), instruments, certificates, legal opinions and other documents as it may reasonably request to ensure the continued enforceability of the Loan Documents, the validity and continued perfection of all Liens under the Loan Documents, the assumption, confirmation and ratification of all obligations of the Successor Borrower and the other obligors under the Loan Documents, and otherwise in connection with the consolidation, the IPO and the transactions contemplated thereby and (iv) the Successor Borrower shall be in pro forma compliance with the covenants contained in Section 6.1;
(c) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Wholly Owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the BorrowerGuarantor;
(d) the Obligors Capital Stock of any Subsidiary may sell, transfer be transferred to Borrower or otherwise dispose of Investments (any other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;Wholly-Owned Subsidiary Guarantor; and
(e) the Obligors Borrower or any Subsidiary may sellamend, transfer modify or otherwise dispose change its name, jurisdiction of Investments to a Financing Subsidiary so long as (i) after giving effect to such saleorganization, transfer organizational number, identification number or other disposition (FEIN in accordance with and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount extent permitted by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% Section 5.6 of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction Guarantee and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearSecurity Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Parsley Energy, Inc.), Credit Agreement (Parsley Energy, Inc.)
Fundamental Changes. The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, Person except for purchases or acquisitions of Investments inventory and other assets property to be sold or used in the normal ordinary course of the day-to-day business activities of the Borrower business, Investments permitted under Section 7.05 and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan DocumentCapital Expenditures. The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsbusiness or property, whether now owned or hereafter acquiredacquired (including, without limitation, receivables and leasehold interests, but excluding (x) assets obsolete or worn out property, tools or equipment, or other assets, in each case, no longer used or useful in its business and (y) any inventory or other than Investments) property sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day and on ordinary business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investmentsterms). Notwithstanding the foregoing provisions of this SectionSection 7.04:
(a) any Restricted Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower Company or any other Subsidiary GuarantorRestricted Subsidiary; provided that (i) if any such transaction shall be between a Restricted Subsidiary Guarantor and a wholly owned Wholly Owned Restricted Subsidiary Guarantorof the Company, a Wholly Owned Restricted Subsidiary shall be the continuing or surviving corporation and (ii) if any such transaction shall be between the Company and a Restricted Subsidiary, the wholly owned Subsidiary Guarantor Company shall be the continuing or surviving corporation;
(b) any Restricted Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) to the Borrower Company or any wholly owned Wholly Owned Restricted Subsidiary Guarantor of the BorrowerCompany;
(c) the capital stock of any Restricted Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower Company or any wholly owned Wholly Owned Restricted Subsidiary Guarantor of the BorrowerCompany;
(d) the Obligors Company or any of its Restricted Subsidiaries may sellsell assets (including, transfer or otherwise dispose without limitation, capital stock issued by any of Investments their respective Subsidiaries) for fair market value provided that (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loansi) the Covered Debt Amount does aggregate amount of Disposition Investments and other non-cash proceeds (valued at the fair market value thereof determined in good faith by the Board of Directors of the Company) received by the seller in the sale of any asset shall not exceed 25% of the Borrowing Basetotal sales price for such asset (including (A) the amount of liabilities, if any, assumed as a portion of the sales price and (B) the amount of any repayment by the seller of the principal of Indebtedness to the extent that (X) such Indebtedness is secured by a Lien on such asset and (Y) the seller is required by the transferee of (or holder of a Lien on) such assets to repay such principal as a condition to the purchase of such asset) and (ii) no more than 10% of EBITDA for any fiscal year of the Company shall be attributable to all such assets so sold in the following fiscal year of the Company;
(e) the Obligors Company or any Restricted Subsidiary of the Company may sellacquire any business, transfer and the related assets, of any other Person including of an Unrestricted Subsidiary (whether by way of purchase of assets or otherwise dispose of Investments to a Financing Subsidiary stock, by merger or consolidation or otherwise), so long as as:
(i) such Acquisition (if by purchase of assets, merger or consolidation) shall be effected in such manner so that the acquired business, and the related assets, are owned either by the Company or a Restricted Subsidiary of the Company and, if effected by merger or consolidation involving the Company, the Company shall be the continuing or surviving entity and, if effected by merger or consolidation involving a Wholly Owned Restricted Subsidiary of the Company, such Wholly Owned Restricted Subsidiary shall be the continuing or surviving entity;
(ii) such Acquisition (if by purchase of stock) shall be effected in such manner so that the acquired entity becomes a Restricted Subsidiary of the Company;
(iii) after giving effect to such saleAcquisition the Company shall be in compliance with Section 7.09 (the determination of such compliance to be calculated on a pro forma basis, transfer or other disposition (as at the end of and for the period of four fiscal quarters most recently ended prior to the date of such Acquisition for which financial statements of the Company and its Restricted Subsidiaries are available, under the assumption that such Acquisition shall have occurred, and any concurrent acquisitions Indebtedness in connection therewith shall have been incurred, at the beginning of Investments or payment the applicable period, and under the assumption that interest for such period had been equal to the actual weighted average interest rate in effect for the Loans hereunder on the date of outstanding Loanssuch Acquisition) and, in the Covered Debt Amount does not event that the aggregate amount of expenditures in respect of such Acquisition shall exceed $100,000,000, the Borrowing Base and the Borrower delivers Company shall have delivered to the Administrative Agent a certificate of a Financial Officer showing calculations in reasonable detail to such effect and demonstrate compliance with this subclause (iiiii); and
(iv) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof Acquisition and after giving effect thereto, no Default shall have occurred or and be continuing;
(f) the Company and its Restricted Subsidiaries may dispose of any one or more outdoor properties in exchange for one or more other outdoor properties (including logo signage businesses), so long as the percentage of the aggregate EBITDA attributable to the properties so disposed of during any single fiscal year does not exceed 10% of the aggregate EBITDA of the Company and its Restricted Subsidiaries for the most recently-ended fiscal year (such EBITDA to be determined for these purposes without giving effect to the last paragraph of the definition of such term in Section 1.01); and
(g) the Borrower and each of the Subsidiary Guarantors may sellany sale, leaseassignment, transfer or otherwise dispose other disposition of equipment property by the Company or other property or assets any Restricted Subsidiary that do not consist of Investments so long would be permitted as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearan Investment pursuant to Section 7.05(a) shall be permitted under this Section 7.04.
Appears in 2 contracts
Sources: Credit Agreement (Lamar Media Corp/De), Credit Agreement (Lamar Media Corp/De)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter Enter into any transaction of merger or merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, Dispose of all or be a party to any acquisition of, any Personsubstantially all of its property or business, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Sectionthat:
(a) any Subsidiary Guarantor of the a Borrower may be merged or consolidated with or into a Borrower (provided that the Borrower shall be the continuing or surviving corporation) or with or into any other Subsidiary Guarantor; Wholly Owned Guarantor (provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Wholly Owned Guarantor shall be the continuing or surviving corporation), provided, in either case, that no U.S. Borrower and no Domestic Subsidiary shall merge or consolidate with or into any Non-U.S. Borrower;
(b) any Subsidiary Guarantor of the a Borrower may sell, lease, transfer or otherwise dispose Dispose of any or all of its assets (i) to the Borrower or any Wholly Owned Guarantor (upon voluntary liquidation or otherwise) or (ii) pursuant to the Borrower or any wholly owned Subsidiary Guarantor of the Borrowera Disposition permitted by Section 7.5;
(c) the capital stock of any Subsidiary of the a Borrower which is not a Guarantor may be sold, transferred merged or otherwise disposed consolidated with or into or may Dispose of any or all of its assets to the Borrower or any wholly owned other Subsidiary Guarantor of the a Borrower;; and
(d) the Obligors any Permitted gTLD Investments may sell, transfer be consummated; provided that in connection with any merger or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to consolidation occurring in connection with such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as Permitted gTLD Investment (i) after giving effect to such sale, transfer the continuing or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate surviving corporation of a Financial Officer to such effect merger or consolidation with a Borrower or a Wholly Owned Guarantor shall be a Borrower or a Wholly Owned Guarantor and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished no U.S. Borrower and no Domestic Subsidiary shall merge or consolidate with or into any Non-U.S. Borrower or entity; provided, that in no event will any U.S. Borrower, as a result of such release any merger, consolidation or (y) the Borrowing Base immediately after giving effect amalgamation otherwise permitted hereunder, change its jurisdiction of organization to such release is at least 110% a jurisdiction outside of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearUnited States.
Appears in 2 contracts
Sources: Credit Agreement (Rightside Group, Ltd.), Credit Agreement (Rightside Group, Ltd.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash and dispositions of investments in connection with exits and work-outs in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses clause (d) and (e) below, InvestmentsPortfolio Investments (to the extent not otherwise included in clause (x) of this Section). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that (i) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing, (ii) if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between the Borrower and a Subsidiary Guarantor, the Borrower shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition release (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect to the Administrative Agent and (ii) either (x) the amount by which of any excess availability under the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(fe) the Borrower or any Subsidiary may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; andcontinuing and provided that (i) if any such transaction shall be between the Borrower and another Person, the Borrower shall be the continuing or surviving corporation, (ii) if any such transaction shall be between a wholly-owned Subsidiary Guarantor and another Person (other than the Borrower), a wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between a Subsidiary Guarantor and another Person (other than the Borrower or a wholly-owned Subsidiary Guarantor), a Subsidiary Guarantor shall be the continuing or surviving corporation;
(gf) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year; and
(g) any Subsidiary may voluntarily dissolve or liquidate if such Subsidiary that does not own, legally or beneficially, assets which in aggregate have a value of $500,000 or more at such time of dissolution or liquidation.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (BlackRock Kelso Capital CORP), Senior Secured Revolving Credit Agreement (BlackRock Kelso Capital CORP)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than SBIC Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including, without limitation, Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than including Cash and Cash Equivalents but excluding Portfolio Investments) sold or disposed of in the ordinary course of business of the Borrower and its Subsidiaries (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. The Borrower will not, nor will it permit any of its Subsidiaries to, file a certificate of division, adopt a plan of division or otherwise take any action to effectuate a division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to applicable law with respect to any corporation, limited liability company, partnership or other entity). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be (i) between a Subsidiary or a wholly owned Subsidiary Guarantor and the Borrower, the Borrower shall be the continuing or surviving entity and (ii) between a Subsidiary and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing an SBIC Subsidiary) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than ownership interests in SBIC Subsidiaries), Cash and Cash Equivalents to a Financing an SBIC Subsidiary so long as (i) prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and no Default or Event of Default exists, and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110120% of the Covered Debt Amount;
(f) any Subsidiary of the Borrower may be liquidated or dissolved; provided that (i) in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower and (ii) the Borrower determines in good faith that such liquidation is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(g) the Borrower may merge or consolidate with any other Person Person, so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and;
(gh) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year; and
(i) any non-Obligor Subsidiary may be merged or consolidated with or into any other non-Obligor Subsidiary.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (FIDUS INVESTMENT Corp), Senior Secured Revolving Credit Agreement (FIDUS INVESTMENT Corp)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries or Immaterial Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries or Immaterial Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than including Cash and Cash Equivalents but excluding Portfolio Investments) sold or disposed of in the ordinary course of business of the Borrower and its Subsidiaries (other than the Financing Subsidiaries) (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries (other than the Financing Subsidiaries)) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than ownership interests in Financing Subsidiaries), Cash and Cash Equivalents to a Financing Subsidiary so long as (i) prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and no Default exists, and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and effect, (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110120% of the Covered Debt Amount, (iii) the sum of (x) all sales, transfers or other dispositions under this clause (e) that occur after the Revolver Termination Date and do not result in Net Asset Sale Proceeds for fair value that are applied in accordance with Section 2.08(d)(i) and (y) all Investments under Section 6.04(e) that occur after the Revolver Termination Date, shall not exceed 20% of the Commitments on the Revolver Termination Date, and (iv) prior to and after giving effect to such sale, transfer or disposition (and any concurrent acquisitions of Portfolio Investments or payment of Loans or Other Covered Indebtedness), the Obligors’ Net Worth exceeds $125,000,000;
(f) an Obligor may transfer assets to a Financing Subsidiary for the sole purpose of facilitating the transfer of assets from one Financing Subsidiary (or a Subsidiary that was a Financing Subsidiary immediately prior to such disposition) to another Financing Subsidiary, directly or indirectly through such Obligor (such assets, the “Transferred Assets”), provided that (i) no Default exists or is continuing at such time, and the Covered Debt Amount shall not exceed the Borrowing Base at such time and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect, and (ii) the Transferred Assets were transferred to such Obligor by the transferor Financing Subsidiary on the same Business Day that such assets are transferred by such Obligor to the transferee Financing Subsidiary;
(g) the Borrower may merge or consolidate with any other Person Person, so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and;
(gh) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year; and
(i) any Subsidiary of the Borrower may be liquidated or dissolved; provided that (i) in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower and (ii) the Borrower determines in good faith that such liquidation is in the best interests of the Borrower and is not materially disadvantageous to the Lenders.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (Capitala Finance Corp.), Senior Secured Revolving Credit Agreement (Capitala Finance Corp.)
Fundamental Changes. (a) The Borrower will not, nor and will it not permit any of the Subsidiary Guarantors to, enter merge into or consolidate with any transaction of merger or consolidation or amalgamationother Person, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business other Person to merge into or property fromconsolidate with it, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions, any part ) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), but excluding or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(ai) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or merge into the Borrower or in a transaction in which the Borrower is the surviving corporation, (ii) any other Subsidiary Guarantor; may merge into any Subsidiary in a transaction in which the surviving entity is a Subsidiary, provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary not a Subsidiary Guarantor, the wholly owned and such Subsidiary Guarantor shall be is not the continuing or surviving corporation;
, then the continuing or surviving corporation shall have assumed all of the obligations of such Subsidiary Guarantor hereunder and under the other Loan Documents pursuant to documentation satisfactory to the Administrative Agent in form and substance, (biii) any Subsidiary Guarantor of the Borrower may sell, leasetransfer, transfer lease or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Subsidiary, provided that if any wholly owned such transaction shall be between a Subsidiary Guarantor and a Subsidiary not a Subsidiary Guarantor, and if such Subsidiary Guarantor is not the continuing or surviving corporation, then the continuing or surviving corporation shall have assumed all of the Borrower;
(c) the capital stock obligations of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned such Subsidiary Guarantor of hereunder and under the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than Loan Documents pursuant to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers documentation satisfactory to the Administrative Agent in form and substance, (iv) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; provided that any such merger that would otherwise be permitted by this Section 6.03 involving a certificate of Person that is not a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount wholly owned Subsidiary immediately prior to such release is merger shall not diminished as a result of such release or be permitted unless also permitted by Section 6.04 and (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(fv) the Borrower may merge or consolidate with any other Person so long into a newly formed, "shell" corporation organized under the laws of the Commonwealth of Virginia in a transaction intended merely to "reincorporate" the Borrower as a Virginia corporation, provided that (i) the Borrower is the continuing or surviving entity corporation shall have assumed all of the obligations of the Borrower hereunder and under the other Loan Documents pursuant to documentation satisfactory to the Administrative Agent in such transaction form and substance, (ii) at the time thereof and after giving effect thereto, no Default shall have occurred and be continuing or be continuing; andwould result therefrom and (iii) the Lenders shall have received a legal opinion from counsel to the Borrower acceptable to the Administrative Agent and in form, scope and substance acceptable to the Administrative Agent as to such merger and such assumption.
(gb) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and each its Subsidiaries on the date of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose execution of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer this Agreement and dispositions does not exceed $5,000,000 in any fiscal yearbusinesses reasonably related thereto.
Appears in 2 contracts
Sources: Five Year Credit Agreement (Smithfield Foods Inc), 364 Day Credit Agreement (Smithfield Foods Inc)
Fundamental Changes. (a) The Borrower will not, nor and will it not permit any Subsidiary to, 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), or engage in a sale/leaseback transaction with respect to, any substantial part of its assets, any trade receivables (other than an assignment in connection with the collection thereof in the ordinary course of business), or all or substantially all of the Subsidiary Guarantors tostock of any of its Subsidiaries (in each case, enter whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (i) any Subsidiary/Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (ii) any Subsidiary/Person may merge into any Subsidiary in a transaction in which the surviving entity is a Subsidiary, (iii) any Subsidiary may sell, transfer, lease or otherwise dispose of merger its assets to the Borrower or consolidation or amalgamationto another Subsidiary, or liquidate, wind up (iv) any Subsidiary may liquidate or dissolve itself (or suffer any if the Borrower determines in good faith that such liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets dissolution is in the normal course of the day-to-day business activities best interests of the Borrower and the assets of such Subsidiary are distributed to Borrower in liquidation or dissolution, provided that any such merger involving a Person that is not a wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.04, and (v) Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, may sell, leasetransfer, transfer or otherwise dispose of, of (in one transaction or a series of transactions), any part of its assetsor engage in a sale/leaseback transaction with respect to, whether now owned assets if the consideration received is in cash or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject equivalents at least equal to the provisions fair market value of clauses (d) such assets and (e) belowthe aggregate consideration received does not exceed $15,000,000 for all such sales, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged transfers, or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;dispositions.
(b) The Borrower will not, and will not permit any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) Subsidiaries to, engage to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of material extent in any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (business other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearTableware Business.
Appears in 2 contracts
Sources: Loan Agreement (Oneida LTD), Credit Agreement (Oneida LTD)
Fundamental Changes. The Borrower will not(1) With respect to the Guarantor or any Significant Subsidiary, nor will it permit any without the consent of the Subsidiary Guarantors to, Administrative Agent and the Required Lenders enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part all or substantially all of the consolidated assets of the Guarantor and its assetsSubsidiaries, whether now owned taken as a whole, except (a) for sales, leases or hereafter acquired, but excluding (x) rentals of property or assets (other than Investments) sold or disposed of in the ordinary course of business business, (including to make expenditures of cash in the normal course b) that any consolidated Subsidiary of the day-to-day business activities of Guarantor (other than the Borrower and its SubsidiariesBorrower) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or Guarantor (provided that the Borrower or Guarantor shall be the continuing or surviving corporation) or with any other Subsidiary Guarantor; one or more Subsidiaries of the Guarantor (provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly wholly-owned Subsidiary, the wholly-owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
), (bc) any Subsidiary Guarantor of (other than the Borrower Borrower) may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower Guarantor or any wholly another wholly-owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
and (d) the Obligors Borrower or Guarantor may sell, transfer or otherwise dispose of Investments (be merged with any other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as Person if (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to or Guarantor is the Administrative Agent a certificate of a Financial Officer to such effect and surviving corporation, (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release merger, there shall exist no condition or event which constitutes an Event of Default or which, with the giving of notice or lapse of time or both, would constitute an Event of Default, and (iii) all representations and warranties contained in Article III hereof are true and correct in all material respects (except for any such representation and warranty that is at least 110% qualified by materiality or reference to Material Adverse Effect, which representation shall be true and correct in all respects) on and as of the Covered Debt Amount;
(f) date of the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in consummation of such transaction and (ii) at the time thereof merger, and after giving effect thereto, no Default as though restated on and as of such date (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have occurred be true and correct in all material respects (except for any such representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which representation shall be continuing; andtrue and correct in all respects) as of such earlier date).
(g2) With respect to the Borrower and each Guarantor, without the consent of the Subsidiary Guarantors may sellAdministrative Agent and the Required Lenders, leasecease to own, transfer directly or otherwise dispose indirectly, 100% of equipment the Equity Interests of NW Natural (other than a single share of the junior preferred capital stock of NW Natural held by an independent third party), free and clear of any lien, pledge, charge or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearsecurity interest.
Appears in 2 contracts
Sources: Credit Agreement (Northwest Natural Gas Co), Credit Agreement (Northwest Natural Gas Co)
Fundamental Changes. The Borrower Except for (a) the liquidation of Thunder Press into its parent company, Ehiert Publishing Group, Inc., and (b) the merger of ▇▇▇▇▇▇▇ Publications Corporation with and into TL Enterprises, Inc., each of which shall occur on or prior to the Effective Date, no Credit Party will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower No Credit Party will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, Person except for purchases or acquisitions of Investments inventory and other assets property to be sold or used in the normal ordinary course of the day-to-day business activities of the Borrower business, Investments permitted under Section 7.5 and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan DocumentCapital Expenditures permitted under Section 7.9(e). The Borrower No Credit Party will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any material part of its assetsbusiness or property, whether now owned or hereafter acquiredacquired (including, without limitation, receivables and leasehold interests, but excluding (x) assets obsolete or worn-out property, including leasehold interests, no longer used or useful in its business, (y) any inventory or other than Investments) property sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day and on ordinary business activities of the Borrower and its Subsidiaries) terms and (yz) subject Sale-Leaseback Transactions to the provisions of clauses (d) and (e) below, Investmentsextent permitted by Section 7.14. Notwithstanding the foregoing provisions of this SectionSection 7.4:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantoror into the Borrower; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary GuarantorWholly Owned Subsidiary, the wholly owned Wholly Owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor that is a Wholly Owned Subsidiary of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor that is a Wholly Owned Subsidiary of the Borrower;; and
(d) the Obligors any Credit Party may sellconsummate any Acquisition with any other Person (whether by way of purchase of assets or stock, transfer by merger or otherwise dispose of Investments (other than to a Financing Subsidiary) consolidation or otherwise), so long as after giving effect to such sale, transfer or other disposition as:
(i) the aggregate purchase price (including assumed liabilities and any concurrent acquisitions non-cash consideration valued at the fair market value thereof determined in good faith by the Board of Investments or payment Directors of outstanding Loansthe Borrower) paid by the Covered Debt Amount does not Credit Parties for Acquisitions in any fiscal year shall not, without the prior consent of the Required Senior Lenders, exceed the Borrowing Base$15,000,000;
(eii) such Acquisition (if by purchase of assets, merger or consolidation) shall be effected in such manner so that the acquired business, and the related assets, are owned by a Credit Party and, if effected by merger or consolidation involving a Credit Party, the Credit Party shall be the continuing or surviving entity;
(iii) such Acquisition (if by purchase of stock) shall be effected in such manner so that the acquired entity becomes a Wholly Owned Subsidiary of a Credit Party;
(iv) the Obligors may sell, transfer type of business of the business acquired in such Acquisition shall be one of the types of business engaged in by the Credit Parties as of the Effective Date and such business shall be located in the United States or otherwise dispose of Investments to a Financing Subsidiary so long as Canada;
(iv) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) Acquisition the Covered Debt Amount does not exceed the Borrowing Base Credit Parties shall be in compliance with Section 7.9 and the Borrower delivers shall have delivered to the Administrative Agent a certificate of a Financial Officer showing such calculations in reasonable detail to demonstrate such effect and compliance; and
(iivi) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof Acquisition and after giving effect thereto, no Default shall have occurred or and be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 2 contracts
Sources: Senior Secured Floating Rate Note Purchase Agreement (Affinity Group Inc), Senior Secured Floating Rate Note Purchase Agreement (Affinity Group Holding, Inc.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than any SPE Subsidiaries or Immaterial Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than any Financing Subsidiaries or Immaterial Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than any Financing Subsidiaries or Immaterial Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash and dispositions of investments in connection with exits and work-outs in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses clause (d) and (e) below, InvestmentsPortfolio Investments (to the extent not otherwise included in clause (x) of this Section). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that (i) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing, (ii) if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between the Borrower and a Subsidiary Guarantor, the Borrower shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such salePortfolio Investments, transfer or other disposition (Cash and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments Cash Equivalents to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition release (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect to the Administrative Agent and (ii) either (x) the amount by which of any excess availability under the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(fe) the Borrower or any Subsidiary may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; andprovided that (i) if any such transaction shall be between the Borrower and another Person, the Borrower shall be the continuing or surviving corporation, (ii) if any such transaction shall be between a wholly-owned Subsidiary Guarantor and another Person (other than the Borrower), a wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between a Subsidiary Guarantor and another Person (other than the Borrower or a wholly-owned Subsidiary Guarantor), a Subsidiary Guarantor shall be the continuing or surviving corporation;
(gf) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year;
(g) any Subsidiary may voluntarily dissolve or liquidate if such Subsidiary that does not own, legally or beneficially, assets which in aggregate have a value of $500,000 or more at such time of dissolution or liquidation; and
(h) the Borrower or the other Obligors may dissolve or liquidate any SBIC Subsidiary; provided that no portion of any Indebtedness or any other obligations (contingent or otherwise) of such SBIC Subsidiary (a) is, or would as a result of dissolution or liquidation hereunder become, recourse to or obligate the Borrower or any other Obligor (other than any SBIC Subsidiary) in any way, or (b) subjects, or would as a result of the dissolution or liquidation hereunder subject, any property of the Borrower or any other Obligor (other than any SBIC Subsidiary) to the satisfaction of such Indebtedness.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (BlackRock Capital Investment Corp), Senior Secured Revolving Credit Agreement (BlackRock Capital Investment Corp)
Fundamental Changes. The Borrower Each Obligor will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower Each Obligor will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, acquire (1) at any business or property from, or capital stock of, or be a party time prior to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors toQualified IPO, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsbusiness or property, whether now owned or hereafter acquiredacquired (including receivables and leasehold interests, but excluding (x) assets obsolete or worn-out property, tools or equipment no longer used or useful in its business, (other than Investmentsy) any property (including Equity Interests of Subsidiaries) sold or disposed of in the ordinary course of business and on ordinary business terms and (z) the issuance of Equity Interests of the Obligors permitted under Section 7.06), and (2) at any time on and after the Qualified IPO Date, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of the consolidated assets (including to make expenditures by way of cash in the normal course sale or transfer of stock of Subsidiaries) of the day-to-day business activities of the Borrower Obligors and its their Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Obligor or any Subsidiary Guarantor of the Borrower an Obligor may be merged or consolidated with or into the Borrower any other Obligor or any other Subsidiary Guarantorof an Obligor; provided that (i) if any such transaction shall be between a Subsidiary (other than an Obligor or a Subsidiary Guarantor) and a wholly owned Subsidiary (other than an Obligor or a Subsidiary Guarantor), the wholly owned Subsidiary shall be the continuing or surviving entity, (ii) if any such transaction shall involve an Obligor, an Obligor shall be the continuing or surviving entity, and (iii) if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Non-Subsidiary Guarantor, the wholly owned such Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower an Obligor may sell, lease, transfer or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) to (i) an Obligor or (ii) in the Borrower or case of any such Subsidiary that is not itself an Obligor, any wholly owned Subsidiary Guarantor of the Borroweran Obligor;
(c) the capital stock Equity Interests of any Subsidiary of the Borrower an Obligor may be sold, transferred or otherwise disposed of to (i) an Obligor or (ii) in the Borrower or case of any such Subsidiary that is not itself an Obligor, any wholly owned Subsidiary Guarantor of the Borrowersuch Obligor;
(di) the Subsidiaries (other than an Obligor) of the Obligors may sellundergo a restructuring, transfer (ii) any Obligor or otherwise dispose any Subsidiary of Investments an Obligor may be reorganized as a corporation in its jurisdiction of organization or in any Permitted Jurisdiction, and (other than iii) prior to a Financing Subsidiary) so long as after giving effect to such salethe Specified IPO Date, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors and their Subsidiaries may sellconsummate the Company Reorganization (each of the transactions described in clauses (i) through (iii) of this paragraph (d), transfer or otherwise dispose which in the case of Investments the foregoing clause (iii) shall be deemed to mean the series of transactions that, taken as a Financing Subsidiary whole, constitute the Company Reorganization, a “Restructuring Transaction”), in each case so long as (iu) after giving effect such Restructuring Transaction could not reasonably be expected to such sale, transfer or other disposition (materially reduce the expected distributions to be received by the Obligors in respect of Management Fees and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.Carried Interest,
Appears in 2 contracts
Sources: Credit Agreement (Carlyle Group L.P.), Credit Agreement (Carlyle Group L.P.)
Fundamental Changes. The Borrower will notMerge into or consolidate with any other Person, nor will it or permit any of the Subsidiary Guarantors to, enter other Person to merge into any transaction of merger or consolidation or amalgamationconsolidate with it, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions, any part ) all or substantially all of its assetsassets (in each case, whether now owned or hereafter acquired), but excluding or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(ai) any Subsidiary Guarantor of the any Borrower may be merged or consolidated with or merge into such Borrower in a transaction in which such Borrower is the Borrower surviving entity, (ii) any Subsidiary of Holdings may merge into Holdings or any other Subsidiary Guarantor; of Holdings (provided that (A) if Kmart Corp. is a party to such merger, such merger shall be with Holdings, Kmart or a direct Subsidiary of Kmart Corp. and Kmart Corp. shall be the continuing or surviving entity, (B) if any such transaction shall be between a Subsidiary Guarantor and is a wholly owned Subsidiary Guarantorparty to such merger (other than with a Borrower or Holdings), the wholly owned such Subsidiary Guarantor shall be the continuing or surviving corporation;
entity or the continuing or surviving entity shall become a Subsidiary Guarantor and (bC) if SRAC is a party to such merger, then Sears shall comply with the requirements of Section 6.01(d)), (iii) any Subsidiary Guarantor of Holdings other than the Borrower Borrowers may sell, leasetransfer, transfer lease or otherwise dispose of any or all of its assets to any Borrower, to Holdings or to a Subsidiary of Holdings (upon voluntary liquidation provided that if such sale or otherwise) to transfer includes Collateral and the transferee is not the Borrower or any wholly owned Holdings, the transferee shall be a Subsidiary Guarantor of the Borrower;
Guarantor), (civ) the capital stock of any Subsidiary of Holdings other than the Borrower may be sold, transferred Borrowers or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors Sears may sell, transfer transfer, lease or otherwise dispose of Investments its assets to a Person that is not a Subsidiary or merge with a Person that is not a Subsidiary, in each case pursuant to a Permitted Disposition, (v) any Subsidiary of Holdings other than to a Financing Subsidiarythe Borrowers, Sears or any Material Subsidiary Guarantor (except, in the case of SRAC, as provided in Section 6.01(d)) so long as after giving effect to such sale, transfer may liquidate or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base dissolve if Holdings and the Borrower delivers Borrowers determine in good faith that such liquidation or dissolution is in the best interests of Holdings, the Borrowers, Sears, the other Material Subsidiary Guarantors and their Subsidiaries and is not disadvantageous in any material respect to Holdings, the Administrative Agent Borrowers, Sears, the other Material Subsidiary Guarantors or the Lenders; provided, that a certificate Material Subsidiary Guarantor may liquidate or dissolve into a Person that is a Subsidiary of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount Holdings immediately prior to such release liquidation or dissolution, if the continuing or surviving entity is or shall become a Subsidiary Guarantor in accordance with Section 6.01(i)(ii), (vi) Holdings or any Subsidiary of Holdings may merge with a Person that is not diminished as a result Subsidiary of such release or (y) the Borrowing Base Holdings immediately after giving effect prior to such release is at least 110% merger if, in the case of the Covered Debt Amount;
(f) the any merger involving Holdings, a Borrower may merge or consolidate with any other Person so long a Subsidiary Guarantor, Holdings, such Borrower or such Subsidiary Guarantor, as (i) the Borrower applicable, is the continuing or surviving entity or, in such transaction the case of any merger involving a Subsidiary Guarantor, the continuing or surviving entity shall become a Subsidiary Guarantor in accordance with Section 6.01(i)(ii) and (iivii) at any Credit Card Royalty Securitization Subsidiary may sell or otherwise finance or Dispose of the time thereof and after giving effect thereto, no Default shall have occurred or be continuingassets subject to the Credit Card Royalty Securitization; and
provided that contemporaneously with (gx) the Borrower and each occurrence of any of the Subsidiary Guarantors may sellactions permitted to be taken pursuant to the foregoing clauses (i) through (vi) of this clause (b) or (y) the consummation of a Credit Card Royalty Securitization, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearBorrowers shall furnish to the Collateral Agent an updated Borrowing Base Certificate.
Appears in 2 contracts
Sources: Second Lien Credit Agreement (Sears Holdings Corp), Second Lien Credit Agreement (Sears Holdings Corp)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors other Obligor to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors other Obligor to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors other Obligor to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses clause (d) and (e) below, InvestmentsPortfolio Investments (to the extent not otherwise included in clause (x) of this Section). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments to a Financing Designated Subsidiary under clause (a) of the definition thereof so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect to the Administrative Agent and (ii) either (x) the amount by which of any excess availability under the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release sale, transfer or disposition is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release sale, transfer or disposition is at least 110% of the Covered Debt Amount;
(fe) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and;
(gf) the Borrower and each of the Subsidiary Guarantors other Obligors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year; and
(g) the Obligors may transfer Restricted Acquisition Assets to a Special Acquisition Subsidiary to the extent required by the terms of the Allied Secured Indebtedness.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (Ares Capital Corp), Senior Secured Revolving Credit Agreement (Ares Capital Corp)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries or Immaterial Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries or Immaterial Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including, without limitation, Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than including Cash and Cash Equivalents but excluding Portfolio Investments) sold or disposed of in the ordinary course of business of the Borrower and its Subsidiaries (other than the Financing Subsidiaries) (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries (other than the Financing Subsidiaries)) and (y) subject to the provisions of clauses (de), (f) and (eg) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) any Subsidiary of the Borrower may be liquidated or dissolved; provided that (i) in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower and (ii) the Borrower determines in good faith that such liquidation is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(d) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(de) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the no Borrowing BaseBase Deficiency exists;
(ef) the Obligors may sell, transfer or otherwise dispose of Investments Portfolio Investments, Cash and Cash Equivalents to a Financing Subsidiary so long as (i) prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the no Borrowing Base Deficiency and no Default exists and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and effect;
(iig) either an Obligor may transfer assets to a Financing Subsidiary for the sole purpose of facilitating the transfer of assets from one Financing Subsidiary (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount or a Subsidiary that was a Financing Subsidiary immediately prior to such release is not diminished as a result of disposition) to another Financing Subsidiary, directly or indirectly through such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt AmountObligor;
(fh) the Borrower and its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year; and
(i) the Borrower may merge or consolidate with any other Person Person, so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or and be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Credit Suisse Park View BDC, Inc.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, its Subsidiaries (other than Financing Subsidiaries and Immaterial Subsidiaries) to enter into any transaction of merger merger, consolidation, division or consolidation amalgamation or amalgamation, or to liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, its Subsidiaries (other than Financing Subsidiaries and Immaterial Subsidiaries) to acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-to- day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries and Immaterial Subsidiaries) to, convey, sell, lease, transfer transfer. divide or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash and dispositions of investments in connection with exits and work-outs (including assets abandoned for no consideration if the Borrower determines such assets have no value) in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses clause (d) and (e) below, InvestmentsPortfolio Investments (to the extent not otherwise included in clause (x) of this Section). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that (i) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing, (ii) if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between the Borrower and a Subsidiary Guarantor, the Borrower shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower Obligor may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect to the Administrative Agent; provided however, if the Borrowing Base is at least 150% of the Covered Debt Amount as of the last day of the monthly accounting period ending immediately prior to such sale, transfer or disposition, as evidenced in the Borrowing Base Certificate most recently delivered by the Borrower pursuant to Section 5.01(d), then the certificate of a Financial Officer referred to in this clause (i) shall be delivered no later than the last day of the calendar month in which such sale, transfer or disposition occurs, and (ii) either (x) the amount by which of any excess availability under the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release sale, transfer or other disposition is not diminished as a result of such release sale, transfer or other disposition or (y) the Gross Borrowing Base immediately after giving effect to such release sale, transfer or other disposition is at least 110% of the Covered Debt Amount;
(fe) the Borrower or any Subsidiary may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; andcontinuing and provided that (i) if any such transaction shall be between the Borrower and another Person, the Borrower shall be the continuing or surviving corporation, (ii) if any such transaction shall be between a wholly-owned Subsidiary Guarantor and another Person (other than the Borrower), a wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation and (iii) if any such transaction shall be between a Subsidiary Guarantor and another Person (other than the Borrower or a wholly-owned Subsidiary Guarantor), a Subsidiary Guarantor shall be the continuing or surviving corporation;
(gf) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 25,000,000 in any fiscal year; and
(g) the Borrower or the other Obligors may dissolve or liquidate (i) any Subsidiary that does not own, legally or beneficially, assets which in aggregate have a value of $500,000 or more at such time of dissolution or liquidation or (ii) any SBIC Subsidiary, provided that no portion of any Indebtedness or any other obligations (contingent or otherwise) of such SBIC Subsidiary (A) is, or would as a result of dissolution or liquidation hereunder become, recourse to or obligate the Borrower or any other Obligor (other than any SBIC Subsidiary) in any way, or (B) subjects, or would as a result of dissolution or liquidation hereunder subject, any property of the Borrower or any other Obligor (other than any SBIC Subsidiary) to the satisfaction of such Indebtedness.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (SLR Investment Corp.)
Fundamental Changes. (a) The Borrower will not, nor and will it not permit any of the Subsidiary Guarantors to, enter merge into or consolidate with any transaction of merger or consolidation or amalgamationother Person, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business other Person to merge into or property fromconsolidate with it, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions, any part ) all or substantially all of its assets, or all or substantially all of the Capital Securities of any of the Subsidiaries (in each case, whether now owned or hereafter acquired), but excluding or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto, no Default shall have occurred and be continuing:
(i) any Subsidiary may: (x) merge with any Person only in an acquisition transaction that is a Permitted Acquisition expressly permitted under the terms and conditions of Section 7.04(d) of this Agreement and provided that the surviving entity becomes a Guarantor and pledges its assets (other than Investments) sold or disposed to secure its liabilities under the Guarantee Agreement and the Capital Securities thereof is pledged to secure the Obligations to the extent contemplated by the definition of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower a “Permitted Acquisition” and its Subsidiaries) and Section 7.04(d), (y) subject to merge into the provisions of clauses (d) Borrower in a transaction in which the Borrower is the surviving entity, and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(az) any Subsidiary may merge into any Guarantor in a transaction in which such Guarantor is the surviving entity;
(ii) any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to any Guarantor; and
(iii) the Borrower or any Subsidiary may sell, transfer, lease or otherwise dispose of its assets in a transaction that is expressly permitted by Section 7.05 of this Agreement; and
(iv) any Domestic Subsidiary of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly wholly-owned Domestic Subsidiary Guarantor of the Borrower;.
(b) The Borrower will not, and will not permit any of the Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses directly related thereto.
(c) the capital stock of The Borrower will not, and will not permit any Subsidiary of the Borrower may be soldto, transferred liquidate or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;dissolve.
(d) the Obligors may sellThe Borrower will not change its address, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers will not, without providing thirty days (30) prior written notice to the Administrative Agent a certificate of a Financial Officer Agent, permit any Domestic Subsidiary to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearchange its address.
Appears in 1 contract
Sources: Credit Agreement (Lecroy Corp)
Fundamental Changes. (a) The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). , except:
(i) any Subsidiary of the Borrower may be merged or consolidated with or into the Borrower or another Subsidiary, provided (A) that if any such transaction shall be between a Subsidiary and the Borrower, the Borrower shall be the continuing or surviving corporation, and (B) if any such transaction shall be between a Subsidiary and another Subsidiary, the surviving or continuing Subsidiary shall be a Subsidiary Guarantor; and
(ii) any merger or consolidation permitted under clause (iii) of paragraph (c) of this Section.
(b) The Borrower will not, nor will it permit any of its Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or a substantial part of its business or property, whether now owned or hereafter acquired, except:
(i) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its property (upon voluntary liquidation or otherwise) to the Borrower or another Subsidiary Guarantors Guarantor of the Borrower; and
(ii) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of, to the Borrower or another Subsidiary Guarantor of the Borrower.
(c) The Borrower will not, nor will it permit any of its Subsidiaries to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any PersonPerson (whether by way of purchase of such assets or stock, except by merger or consolidation or otherwise), except:
(i) for any merger or consolidation permitted under clause (i) of paragraph (a) of this Section;
(ii) for purchases or acquisitions of Investments inventory and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) property to be sold or disposed of used in the ordinary course of business and Investments permitted under Section 6.06(a); and
(including to make expenditures of cash in the normal course of the day-to-day business activities of iii) the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) or any Subsidiary Guarantor of the Borrower may acquire any business, and the related assets, of any other Person (whether by way of purchase of assets or stock, by merger or consolidation or otherwise), so long as such acquisition meets the following qualifications (each such acquisition a "Permitted Acquisition"): 50 [A] if such acquisition shall be merged effected by merger or consolidated with or into consolidation involving the Borrower, the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
entity; [B] such acquisition (bif by purchase of stock) any Subsidiary Guarantor of shall be effected in such manner so that the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned acquired entity becomes a Subsidiary Guarantor of the Borrower;
(c) ; [C] such acquisition involves a line or lines of business that will not substantially change the capital stock of any Subsidiary general nature of the Borrower may be sold, transferred or otherwise disposed of to business in which the Borrower and its Subsidiaries, considered as an entirety, are engaged on the Effective Date. [D] no Default or any wholly owned Subsidiary Guarantor Event of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately Default shall exist prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amountacquisition;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 1 contract
Sources: Credit Agreement (Greatbatch, Inc.)
Fundamental Changes. The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors Guarantor to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors Guarantor to, enter into any transaction of merger or consolidation or amalgamation, or acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day day‑to‑day business activities of the Borrower Company and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan DocumentAgreement. The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors Guarantor to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than including, without limitation, Portfolio Investments) sold sold, exited or disposed of in the ordinary course of business (including to make expenditures of cash and dispositions of investments in connection with exits and work‑outs in the normal course of the day-to-day day‑to‑day business activities of the Borrower Company and its Subsidiaries) and (y) subject to the provisions of clauses clause (d) and (e) below, InvestmentsPortfolio Investments (to the extent not otherwise included in clause (x) of this paragraph). Blackrock Capital Investment Corporation Note Purchase Agreement Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower Company may be merged or consolidated with or into the Borrower Company or any other Subsidiary Guarantor; provided that (i) immediately after giving effect thereto, no Default shall have occurred or be continuing, (ii) if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationcorporationentity and (iii) if any such transaction shall be between the Company and a Subsidiary Guarantor, the Company shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower Company or any wholly owned Subsidiary Guarantor of the BorrowerCompany;
(c) the capital stock of any Subsidiary of the Borrower Guarantor may be sold, transferred or otherwise disposed dispose of to the Borrower Company or any wholly owned Subsidiary Guarantor of the BorrowerCompany;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than Portfolio Investments, Cash and Cash Equivalents to a Financing Subsidiary) an SPE Subsidiary or an SBIC Subsidiary so long as after giving effect to such sale, transfer transaction is not prohibited by the Bank Credit Agreement or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing BaseReplacement Facility;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt AmountPermitted Merger Transactions shall be permitted;
(f) the Borrower any Subsidiary Guarantor may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and immediately after giving effect thereto, thereto no Default shall have occurred or be continuing; andprovided that (i) if any such transaction shall be between a wholly owned Subsidiary Guarantor and another Person (other than the Company), a wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity and (ii) if any such transaction shall be between a Subsidiary Guarantor and another Person (other than the Company or a wholly owned Subsidiary Guarantor), a Subsidiary Guarantor shall be the continuing or surviving corporationentity; Blackrock Capital Investment Corporation Note Purchase Agreement
(g) the Borrower Company and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year;
(h) any Subsidiary Guarantor may voluntarily dissolve or liquidate if such Subsidiary Guarantor that does not own, legally or beneficially, assets which in aggregate have a value of $500,000 or more at such time of dissolution or liquidation; and/or
(i) the Company or the other Obligors may dissolve or liquidate any SBIC Subsidiary; provided that no portion of any Indebtedness or any other obligations (contingent or otherwise) of such SBIC Subsidiary (a) is, or would as a result of dissolution or liquidation hereunder become, recourse to or obligate the Company or any other Obligor (other than any SBIC Subsidiary) in any way, or (b) subjects, or would as a result of the dissolution or liquidation hereunder subject, any property of the Company or any other Obligor (other than any SBIC Subsidiary) to the satisfaction of such Indebtedness.
Appears in 1 contract
Sources: Master Note Purchase Agreement (BlackRock Capital Investment Corp)
Fundamental Changes. The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part all or substantially all of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower Company or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may convey, sell, lease, transfer or otherwise dispose of any all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower Company or any wholly owned Subsidiary Guarantor of the BorrowerGuarantor;
(c) the capital stock of any Subsidiary of the Borrower Guarantor may be soldconvey, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments all or substantially all of its assets (other than to a Financing Subsidiary) so long as after giving effect to such conveyance, sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Indebtedness), no Default or Event of Default hereunder or as defined under the W▇▇▇▇ Fargo Facility or the Replacement Facility shall have occurred or be continuing;
(d) any Subsidiary Guarantor convey, sell, transfer or otherwise dispose of all or substantially all of its assets to a Financing Subsidiary so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Loans) Indebtedness), no Default or Event of Default hereunder or as defined under the Covered Debt Amount does not exceed W▇▇▇▇ Fargo Facility or the Borrowing BaseReplacement Facility shall have occurred or be continuing and the Company delivers to the holders of the Notes a certificate of a Senior Financial Officer to such effect;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower Company may merge or consolidate with any other Person so long as (i) the Borrower Company is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default or Event of Default shall have occurred or be continuing; and
(gf) the Borrower and each of the Subsidiary Guarantors Company may merge or consolidate with any other Person, or convey, sell, lease, transfer transfer, or otherwise dispose of equipment all or substantially all of its assets, so long as:
(i) the successor formed by such consolidation or the survivor of such merger or the Person that acquires by conveyance, transfer or lease all or substantially all of the assets of the Company shall be a solvent corporation or limited liability company or other property entity organized and existing under the laws of the United States or assets any state thereof (including the District of Columbia), and, if the Company is not such corporation or limited liability company or other entity, (A) such corporation or limited liability company or other entity shall have executed and delivered to each holder of any Notes its assumption of the due and punctual performance and observance of each covenant and condition of this Agreement and the Notes applicable to the Company, as appropriate, and (B) such corporation or limited liability company or other entity shall have caused to be delivered to each holder of any Notes an opinion of nationally recognized independent counsel, or other independent counsel reasonably satisfactory to the Required Holders, to the effect that do not consist all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof; and
(ii) each Subsidiary Guarantor under any Subsidiary Guaranty that is outstanding at the time such transaction or each transaction in such a series of Investments so long as transactions occurs reaffirms its obligations under such Subsidiary Guaranty in writing at such time pursuant to documentation that is reasonably acceptable to the aggregate amount Required Holders; and
(iii) immediately before and immediately after giving effect to such transaction, no Default or Event of all such sales, leases, transfer Default shall have occurred and dispositions does not exceed $5,000,000 in any fiscal yearbe continuing.
Appears in 1 contract
Sources: Master Note Purchase Agreement (New Mountain Guardian III BDC, L.L.C.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries or Immaterial Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries or Immaterial Subsidiaries) to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries or Immaterial Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including, without limitation, Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than including Cash and Cash Equivalents but excluding Portfolio Investments) sold or disposed of in the ordinary course of business of the Borrower and its Subsidiaries (other than the Financing Subsidiaries) (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries (other than the Financing Subsidiaries)) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments Portfolio Investments, Cash and Cash Equivalents to a Financing Subsidiary (other than (i) prior to the date on which THL Credit SBIC, LP has obtained a license, or has received a “green light” letter, from the SBA to operate as a “small business investment company”, to the SBIC Entities” or (ii) the direct ownership interest in another Financing Subsidiary) so long as (i) prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and no Default exists and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and effect, (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110120% of the Covered Debt Amount, and (iii) the sum of (x) all sales, transfers or other dispositions under this clause (e) that occur after the Revolver Termination Date and do not result in Net Asset Sale Proceeds for fair value that are applied in accordance with Section 2.08(d)(i) and (y) all Investments under Section 6.04(e) that occur after the Revolver Termination Date, shall not exceed 25% of the Commitments on the Revolver Termination Date;
(f) the Borrower may merge or consolidate with any other Person Person, so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and;
(g) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year;
(h) prior to the date on which THL Credit SBIC, LP has obtained a license from the SBA to operate as a “small business investment company”, the Borrower and its Subsidiaries may transfer or dispose of cash to any of the SBIC Entities for the limited purpose of allowing any of the SBIC Entities to pay reasonable administrative fees, costs and expenses consistent with past practice;
(i) any Subsidiary of the Borrower may be liquidated or dissolved; provided that (i) in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to the Borrower or any wholly-owned Subsidiary Guarantor of the Borrower and (ii) the Borrower determines in good faith that such liquidation is in the best interest of the Borrower and is not materially disadvantageous to the Lenders; and
(j) an Obligor may transfer assets to a Financing Subsidiary for the sole purpose of facilitating the transfer of assets from one Financing Subsidiary (or a Subsidiary that was a Financing Subsidiary immediately prior to such disposition) to another Financing Subsidiary, directly or indirectly through such Obligor (such assets, the “Transferred Assets”), provided that (i) no Default exists or is continuing at such time, (ii) the Covered Debt Amount shall not exceed the Borrowing Base at such time and (iii) the Transferred Assets were transferred to such Obligor by the transferor Financing Subsidiary on the same Business Day that such assets are transferred by such Obligor to the transferee Financing Subsidiary.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (THL Credit, Inc.)
Fundamental Changes. The Borrower will not(a) With respect to the Guarantor or any Significant Subsidiary, nor will it permit any without the consent of the Subsidiary Guarantors to, Administrative Agent and the Required Lenders enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part all or substantially all of the consolidated assets of the Guarantor and its assetsSubsidiaries, whether now owned taken as a whole, except (i) for sales, leases or hereafter acquired, but excluding (x) rentals of property or assets (other than Investments) sold or disposed of in the ordinary course of business business, (including to make expenditures of cash in the normal course ii) that any consolidated Subsidiary of the day-to-day business activities of Guarantor (other than the Borrower and its SubsidiariesBorrower) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or the Guarantor (provided that the Borrower or the Guarantor shall be the continuing or surviving corporation) or with any other Subsidiary Guarantor; one or more Subsidiaries of the Guarantor (provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly wholly-owned Subsidiary, the wholly-owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
), (biii) any Subsidiary Guarantor of (other than the Borrower Borrower) may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower Guarantor or any wholly another wholly-owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to Guarantor and (iv) the Borrower or the Guarantor may be merged with any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either Person if (x) the amount by which Borrower or the Borrowing Base exceeds Guarantor is the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or surviving corporation, (y) the Borrowing Base immediately after giving effect to such release merger, there shall exist no condition or event which constitutes an Event of Default or which, with the giving of notice or lapse of time or both, would constitute an Event of Default, and (z) all representations and warranties contained in Article III hereof are true and correct in all material respects (except for any such representation and warranty that is at least 110% qualified by materiality or reference to Material Adverse Effect, which representation shall be true and correct in all respects) on and as of the Covered Debt Amount;
(f) date of the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in consummation of such transaction and (ii) at the time thereof merger, and after giving effect thereto, no Default as though restated on and as of such date (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have occurred be true and correct in all material respects (except for any such representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which representation shall be continuing; andtrue and correct in all respects) as of such earlier date).
(gb) With respect to the Borrower and each Guarantor, without the consent of the Subsidiary Guarantors may sellAdministrative Agent and the Required Lenders, leasecease to own, transfer directly or otherwise dispose indirectly, 100% of equipment the Equity Interests of NW Natural (other than a single share of the junior preferred capital stock of NW Natural held by an independent third party), free and clear of any lien, pledge, charge or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearsecurity interest.
Appears in 1 contract
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including, without limitation, Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than Portfolio Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries (other than the Financing Subsidiaries)) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing SubsidiarySubsidiary or Asset Manager) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments Portfolio Investments, Cash and Cash Equivalents to a Financing Subsidiary or Asset Manager so long as (i) prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and no Default exists and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and effect, (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110120% of the Covered Debt Amount;Amount and (iii) in the case of any sale, transfer or other disposition to Fifth Street Funding, LLC, if the Structured Facility Agreements – FSF are outstanding, the Reinvestment Period (as defined in the Structured Loan Agreement – FSF) has not ended, or in the event that the Structured Facility Agreements – FSF have been terminated or replaced, the lender holding liens on the assets of Fifth Street Funding, LLC, if any, has not instituted a process whereby the principal portion of loan assets held by Fifth Street Funding, LLC may not be reinvested or distributed to its equity holder.
(f) the Borrower may merge or consolidate with any other Person Person, so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and;
(g) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year;
(h) any Subsidiary of the Borrower may be liquidated or dissolved, provided that, in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower; and
(i) the Borrower may sell or transfer, in one or more transactions, Equity Interests of Fifth Street Funding II, LLC (or Fifth Street Funding II, LLC may issue new Equity Interests) to any Person for a fair value thereof, provided that no Default or Event of Default has occurred and is continuing or would occur as a result of such transfer or issuance.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Fifth Street Finance Corp)
Fundamental Changes. The Borrower Parent Guarantor will not, nor will it permit any of the Subsidiary Guarantors its Included Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower Parent Guarantor will not, nor will it permit any of the Subsidiary Guarantors its Included Subsidiaries to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, Person except for purchases or acquisitions of Investments inventory and other assets property to be sold or used in the normal ordinary course of the day-to-day business activities of the Borrower business, Investments permitted under Section 7.05 and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan DocumentCapital Expenditures permitted under Section 7.09(c). The Borrower Parent Guarantor will not, nor will it they permit any of the Subsidiary Guarantors its Included Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsbusiness or property, whether now owned or hereafter acquiredacquired (including receivables and leasehold interests, but excluding (x) assets obsolete or worn-out property, tools or equipment no longer used or useful in its business and (y) any inventory or other than Investments) property sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day and on ordinary business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investmentsterms). Notwithstanding the foregoing provisions of this Section:
(a) any Included Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other such Included Subsidiary Guarantoror dissolved and its affairs wound up; provided that (i) if any such transaction shall be between a Included Subsidiary Guarantor that is not an Obligor and an Obligor, the Obligor shall be the continuing or surviving corporation and (ii) if any such transaction shall be between a Included Subsidiary that is not a Wholly Owned Subsidiary and a wholly owned Subsidiary GuarantorWholly Owned Subsidiary, the wholly owned Wholly Owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Included Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of Wholly Owned Subsidiary; provided that, if the Borrowertransferor in any such transaction shall be an Obligor, the transferee shall be an Obligor;
(c) the capital stock of any Included Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Wholly Owned Subsidiary Guarantor of ; provided that, if the Borrowertransferor in any such transaction shall be an Obligor, the transferee shall be an Obligor;
(d) unless a Default has occurred and is continuing, the Obligors Borrower or any of its Included Subsidiaries may sell, transfer or otherwise dispose sell Property Designated For Sale for cash and for fair market value as determined by the Board of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing BaseDirectors;
(e) the Obligors Borrower or any of its Subsidiaries may sell, transfer or otherwise dispose of Investments obsolete or surplus equipment to a Financing Subsidiary so long as the extent that (i) after giving effect to such sale, transfer equipment is exchanged for credit against the purchase price of similar replacement equipment or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result proceeds of such release or (y) dispositions are reasonably promptly applied to the Borrowing Base immediately after giving effect to purchase price of such release is at least 110% of the Covered Debt Amountreplacement equipment;
(f) unless a Default has occurred and is continuing, the Borrower may merge sell all or consolidate any portion of its equity interests in any Joint Venture for cash for fair market value, subject to the conditions that (a) the amount of consideration to be received by the Borrower (including the amount of any Guarantee theretofore issued by the Borrower to be cancelled in connection with such sale) has been determined by the Board of Directors to be fair to the Borrower, (b) if the aggregate amount of such consideration exceeds $10,000,000, the Board of Directors shall have received a fairness opinion in connection with such sale rendered by a recognized institution with established expertise in valuing transactions of such type and (c) in connection with such sale, all Guarantees theretofore issued by the Borrower in support of obligations of such Joint Venture shall be cancelled or reduced at least in proportion to the percentage of interests sold;
(g) unless a Default has occurred and is continuing, the Borrower and its Included Subsidiaries may sell other property for cash for fair market value for consideration not exceeding $3,000,000 in any other Person so long as Fiscal Year;
(h) leases and subleases of property in the ordinary course of business;
(i) non-exclusive licenses of Intellectual Property in the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuingordinary course of business; and
(gj) the Parent Guarantor and its Included Subsidiaries may sell assets to the extent permitted by Section 7.10. The Collateral Agent agrees to execute such UCC termination statements or partial release statements, as applicable, and other Lien release documents as the Borrower and each reasonably requests to evidence the release of the Subsidiary Guarantors may sellCollateral Agent's Lien in respect of property conveyed, leasesold, transfer transferred or otherwise dispose disposed of equipment or other property or assets in compliance with this Section 7.03; provided that do not consist the Borrower shall provide to the Collateral Agent evidence of Investments so long such transaction's compliance with this Section 7.03 as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearCollateral Agent may reasonably request.
Appears in 1 contract
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, enter into any transaction of merger or merger, division, consolidation or amalgamation, or liquidate or provisionally liquidate, wind up or dissolve itself (or suffer any liquidation, provisional liquidation or dissolution). The Borrower will not, nor will it permit any of its Subsidiaries to reorganize under the Subsidiary Guarantors laws of a jurisdiction other than any jurisdiction in the United States. The Borrower will not, nor will it permit any of its Subsidiaries (other than Financing Subsidiaries) to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including, without limitation, Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than including Cash and Cash Equivalents but excluding Portfolio Investments) sold or disposed of in the ordinary course of business of the Borrower and its Subsidiaries (other than the Financing Subsidiaries) (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries (other than the Financing Subsidiaries)) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. The Borrower will not, nor will it permit any of its Subsidiaries to, change its name, jurisdiction of formation, chief executive office and/or principal place of business without giving the Administrative Agent a minimum of thirty (30) days’ (or such lesser period as the Administrative Agent may reasonably agree) written notice thereof. The Borrower will not, nor will it permit any of its Subsidiaries to, file a certificate of division; adopt a plan of division or otherwise take any action to effectuate a division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to applicable law with respect to any corporation, limited liability company, partnership or other entity). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be (i) between a Subsidiary or a wholly owned Subsidiary Guarantor and the Borrower, the Borrower shall be the continuing or surviving entity and (ii) between a Subsidiary and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing BaseBase and, on the date of such sale, transfer or disposition, the Borrower delivers to the Administrative Agent and each Lender a Borrowing Base Certificate as at such date demonstrating compliance with (or a certification that the Borrower is in compliance with) the foregoing after giving effect to such sale, transfer or disposition;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than ownership interests in Financing Subsidiaries), Cash and Cash Equivalents to a Financing Subsidiary so long as (i) both immediately prior to and immediately after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) (i) the Covered Debt Amount does not exceed the Borrowing Base and no Default exists, and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and effect, (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110115% of the Covered Debt Amount, (iii) the sum of (x) all sales, transfers or other dispositions under this clause (e) that occur after the Revolver Termination Date and do not result in Net Asset Sale Proceeds for fair value that are applied in accordance with Section 2.08(d)(i) and (y) all Investments under Section 6.04(e) that occur after the Revolver Termination Date, shall not exceed 20% of the Commitments on the Revolver Termination Date, and (iv) the Asset Coverage Ratio is not less than 1.67 to 1 (and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer with respect to each of clauses (i) through (iv) of this clause (e));
(f) an Obligor may transfer assets to a Financing Subsidiary for the sole purpose of facilitating the transfer of assets from one Financing Subsidiary (or a Subsidiary that was a Financing Subsidiary immediately prior to such disposition) to another Financing Subsidiary, directly or indirectly through such Obligor (such assets, the “Transferred Assets”); provided that (i) no Default exists or is continuing at such time, and the Covered Debt Amount shall not exceed the Borrowing Base at such time and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect, and (ii) the Transferred Assets were transferred to such Obligor by the transferor Financing Subsidiary on the same Business Day that such assets are transferred by such Obligor to the transferee Financing Subsidiary;
(g) the Borrower may merge or consolidate with any other Person Person, so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and;
(gh) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year; and
(i) any Subsidiary of the Borrower may be liquidated or dissolved; provided that (i) in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower and (ii) the Borrower determines in good faith that such liquidation is in the best interests of the Borrower and is not materially disadvantageous to the Lenders.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (MONROE CAPITAL Corp)
Fundamental Changes. The Borrower will notMerge, nor will it permit any of the Subsidiary Guarantors todissolve, enter liquidate, consolidate with or into any transaction of merger or consolidation or amalgamationanother Person, or liquidate, wind up or dissolve itself Dispose of (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, whether in one transaction or in a series of transactions, any part ) all or substantially all of its assets, assets (whether now owned or hereafter acquired) to or in favor of any Person, but excluding (x) assets (other than Investments) sold except that, so long as no Default exists or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Sectionwould result therefrom:
(a) any Subsidiary Guarantor of may merge with (i) the Borrower, provided that the Borrower may shall be merged the continuing or consolidated with surviving Person, or into the Borrower (ii) any one or any more other Subsidiary Guarantor; Subsidiaries, provided that if when any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantoris merging with another Subsidiary, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationPerson;
(b) any Subsidiary Guarantor may Dispose of the Borrower may sell, lease, transfer all or otherwise dispose of any or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of to another Subsidiary; provided that if the Borrowertransferor in such a transaction is a Guarantor, then the transferee must either be the Borrower or a Guarantor;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to consummate the Borrower or any wholly owned Subsidiary Guarantor of AFIX Acquisition Transaction and the BorrowerSpecTal Acquisition Transaction;
(d) the Obligors any Subsidiary that is not a Loan Party may sell, transfer merge or otherwise dispose of Investments (consolidate with or into any other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors Borrower may sell, transfer or otherwise dispose of Investments to a Financing dissolve any Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release that is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt AmountMaterial Subsidiary;
(f) the Borrower any Permitted Acquisition expressly permitted by Section 7.02 may merge be structured as a merger, consolidation or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuingamalgamation; and
(g) the consummation of a Holdings Transaction; provided that (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) such Holdings Transaction shall not cause the Borrower and each its Subsidiaries, or any of their respective assets, to be subject to any current or reasonably foreseeable material tax liabilities, (iii) such Holdings Transaction shall not have a Material Adverse Effect, (iv) Holdings shall enter into the Subsidiary Guarantors may sellHoldings Agreement on terms reasonably satisfactory to the Administrative Agent and (v) the Borrower shall have provided to the Lenders all information and documentation, leaseincluding, transfer without limitation, legal opinions of one or otherwise dispose of equipment or other property or assets that do not consist of Investments so long more counsel to Holdings, with respect to such Holdings Transaction and the Holdings Agreement as the aggregate amount of Administrative Agent may reasonably request, and all such sales, leases, transfer information and dispositions does not exceed $5,000,000 in any fiscal yeardocumentation shall be reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve or divide itself (or suffer any liquidation liquidation, dissolution or dissolutiondivision). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock Capital Stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (w) any transaction permitted under Section 6.05 or 6.12, (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash and Cash Equivalents in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this SectionSection 6.03:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock Capital Stock of any Subsidiary of the Borrower may be sold, transferred (including a deemed transfer resulting from a division or plan of division) or otherwise disposed of (including by way of consolidating or merger)
(i) to the Borrower or any wholly owned Subsidiary Guarantor of the BorrowerBorrower or (ii) so long as such transaction results in an Obligor receiving the proceeds of such disposition, to any other Person provided that in the case of this clause (ii) if such Subsidiary is a Subsidiary Guarantor or holds any Portfolio Investments, the Borrower would not have been prohibited from disposing of any such Portfolio Investments to such other Person under any other term of this Agreement;
(d) the Obligors may sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose Dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans, Aggregate Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount or Aggregate Covered Debt Amount at such time) (I) in the case of any Investment (other than any Investment not held in the Collateral Account) (x) the Covered Debt Amount does not exceed the Borrowing BaseBase or (y) if such sale, transfer or other disposition is made pursuant to, and in accordance with, a plan submitted and accepted in accordance with clause (e) of Article VII or, if 122 767993213 21683072 the Administrative Agent otherwise consents in writing, the amount by which the Covered Debt Amount exceeds the Borrowing Base is reduced thereby and (II) in the case of any Investment (x) the Aggregate Covered Debt Amount does not exceed the Aggregate Portfolio Balance or (y) if such sale, transfer or other disposition is made pursuant to, and in accordance with, a plan submitted and accepted in accordance with clause (e) of Article VII or, if the Administrative Agent otherwise consents in writing, the amount by which the Aggregate Covered Debt Amount exceeds the Aggregate Portfolio Balance is reduced thereby;
(e) the Obligors may sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose Dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans, Aggregate Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount or Aggregate Covered Debt Amount at such time) (I) in the case of any Investment (other than any Investment not held in the Collateral Account), the Covered Debt Amount does not exceed the Borrowing Base and (II) in the case of any Investment, the Aggregate Covered Debt does not exceed the Aggregate Portfolio Balance and, in each case, the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and effect, (ii) in the case of any Investment (other than any Investment not held in the Collateral Account) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release sale, transfer or other disposition is not diminished as a result of such release sale, transfer or other disposition or (y) the Borrowing Base immediately after giving effect to such release sale, transfer or other disposition is at least 110% of the Covered Debt Amount and (iii) in the case of any Investment, the Aggregate Portfolio Balance immediately after giving effect to such sale, transfer or other disposition exceeds the Aggregate Covered Debt Amount;
(f) the Borrower may merge or consolidate with with, or acquire all or substantially all of the assets of, any other Person (including any Subsidiary Guarantor) so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; andprovided that, in no event shall the Borrower enter in any transaction of merger or consolidation or amalgamation, or effect any internal reorganization, if the surviving entity would be organized under any jurisdiction other than a jurisdiction of the United States;
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year;
(h) the Obligors may transfer assets to a Financing Subsidiary for the sole purpose of facilitating the transfer of assets from one Financing Subsidiary (or a Subsidiary that was a Financing Subsidiary immediately prior to such disposition) to another Financing Subsidiary, directly or indirectly through such Obligor (such assets, the “Transferred Assets”); and 123 767993213 21683072
(i) the Borrower may dissolve or liquidate any Subsidiary Guarantor so long as in connection with such dissolution or liquidation, any and all of the assets of such Subsidiary Guarantor shall be distributed or otherwise transferred to an Obligor.
Appears in 1 contract
Sources: Revolving Credit Agreement (Hercules Capital, Inc.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than SBIC Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including, without limitation, Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than including Cash and Cash Equivalents but excluding Portfolio Investments) sold or disposed of in the ordinary course of business of the Borrower and its Subsidiaries (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing SBIC Subsidiary) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than ownership interests in SBIC Subsidiaries), Cash and Cash Equivalents to a Financing SBIC Subsidiary so long as (i) prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and no Default or Event of Default exists, and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect effect, and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110120% of the Covered Debt Amount; Fidus — Conformed Final Credit Agreement
(f) any Subsidiary of the Borrower may be liquidated or dissolved; provided that (i) in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower and (ii) the Borrower determines in good faith that such liquidation is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(fg) the Borrower may merge or consolidate with any other Person Person, so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and;
(gh) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year; and
(i) any non-Obligor Subsidiary may be merged or consolidated with or into any other non-Obligor Subsidiary.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (FIDUS INVESTMENT Corp)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries or Immaterial Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries or Immaterial Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than including Cash and Cash Equivalents but excluding Portfolio Investments) sold or disposed of in the ordinary course of business of the Borrower and its Subsidiaries (other than the Financing Subsidiaries) (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries (other than the Financing Subsidiaries)) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base;
(e) in each case subject to the prior written consent of the Administrative Agent and the Required Lenders following the Sixth Amendment Effective Date, the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than ownership interests in Financing Subsidiaries), Cash and Cash Equivalents to a Financing Subsidiary so long as (i) prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and no Default exists, and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and effect, (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110120% of the Covered Debt Amount, (iii) the sum of (x) all sales, transfers or other dispositions under this clause (e) that occur after the Revolver Termination Date and do not result in Net Asset Sale Proceeds for fair value that are applied in accordance with Section 2.08(d)(i) and (y) all Investments under Section 6.04(e) that occur after the Revolver Termination Date, shall not exceed 20% of the Commitments on the Revolver Termination Date, and (iv) prior to and after giving effect to such sale, transfer or disposition (and any concurrent acquisitions of Portfolio Investments or payment of Loans or Other Covered Indebtedness), the Obligors’ Net Worth exceeds $125,000,000;
(f) an Obligor may transfer assets to a Financing Subsidiary for the sole purpose of facilitating the transfer of assets from one Financing Subsidiary (or a Subsidiary that was a Financing Subsidiary immediately prior to such disposition) to another Financing Subsidiary, directly or indirectly through such Obligor (such assets, the “Transferred Assets”), provided that (i) no Default exists or is continuing at such time, and the Covered Debt Amount shall not exceed the Borrowing Base at such time and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect, and (ii) the Transferred Assets were transferred to such Obligor by the transferor Financing Subsidiary on the same Business Day that such assets are transferred by such Obligor to the transferee Financing Subsidiary;
(g) the Borrower may merge or consolidate with any other Person Person, so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and;
(gh) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year; and
(i) any Subsidiary of the Borrower may be liquidated or dissolved; provided that (i) in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower and (ii) the Borrower determines in good faith that such liquidation is in the best interests of the Borrower and is not materially disadvantageous to the Lenders.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Capitala Finance Corp.)
Fundamental Changes. The Borrower will not, nor and will it not permit any of the Subsidiary Guarantors toSubsidiary, enter into any transaction of merger to merge, consolidate or consolidation or amalgamationamalgamate, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any or Dispose of all or substantially all of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to , taken as a whole, or all or substantially all of the provisions Capital Stock of clauses (d) and (e) belowany of the Subsidiaries, Investments. Notwithstanding the foregoing provisions of this Sectionexcept that:
(a) any Subsidiary Guarantor of the Borrower or any Person may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; (provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor Borrower shall be the continuing or surviving corporation) or with or into any Subsidiary (provided that the continuing or surviving corporation shall be a Subsidiary);
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose Dispose of any or all of its assets to the Borrower or any Subsidiary (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower);
(c) the capital stock of any Borrower or a Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to merge with another Person; provided (i) the Borrower or any wholly owned such Subsidiary Guarantor (subject to clause (ii)), as the case may be, shall be the continuing or surviving corporation of such merger, or (ii) in the case of a Wholly-Owned Subsidiary of the Borrower which is merged into another Person which is the continuing or surviving Person of such merger, the Borrower shall cause such continuing or surviving corporation to be a Wholly-Owned Subsidiary of the Borrower; provided in the case of (i) and (ii) above, immediately before and after giving effect to such merger no Default or Event of Default shall have occurred and be continuing;
(d) the Obligors provided that no Default or Event of Default shall have occurred and be continuing, any Subsidiary may sellbe dissolved, transfer wound-up or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer liquidated or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge into or consolidate with any other Person so long as (i) and all or substantially all of the Capital Stock or assets of any Subsidiary may be Disposed of, in each case, if such dissolution, winding up, liquidation or Disposition does not constitute a Disposition of all of the assets of the Borrower and its Subsidiaries, taken as a whole, and if the Borrower determines in good faith that such liquidation or dissolution is in the continuing or surviving entity in such transaction best interests of the Borrower, is not materially disadvantageous to the Lenders and (ii) at the time thereof and after giving effect thereto, no Default shall would not be likely to have occurred or be continuinga Material Adverse Effect; and
(ge) the Borrower and each of may consummate the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearAcquisition.
Appears in 1 contract
Sources: Term Loan Facility (Synopsys Inc)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve or divide itself (or suffer any liquidation or dissolutiondissolution or division). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock Capital Stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (w) any transaction permitted under Section 6.05 or 6.12, (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash Cash and Cash Equivalents in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower Obligor may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock Capital Stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of (including by way of consolidation or merger)
(i) to the Borrower or any wholly owned Subsidiary Guarantor of the BorrowerBorrower or (ii) so long as such transaction results in an Obligor receiving the proceeds of such disposition, to any other Person, provided, that in the case of this clause (ii), if such Subsidiary is a Subsidiary Guarantor or holds any Portfolio Investments, the Borrower would not have been prohibited from disposing of any such Portfolio Investments to such other Person under any other term of this Agreement;
(d) the Obligors may sell, transfer or otherwise dispose Dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansLoans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base;; 742026061 21680120
(e) the Obligors may sell, transfer or otherwise dispose Dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansLoans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release sale, transfer or other disposition is not diminished as a result of such release sale, transfer or other disposition or (y) the Borrowing Base immediately after giving effect to such release sale, transfer or other disposition is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with (or acquire all or substantially all of the assets of) any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect theretothereto (and any concurrent acquisitions of Portfolio Investments by the Borrower or payment of outstanding Loans), no Default shall have occurred or be continuing; andprovided that, in no event shall the Borrower enter in any transaction of merger or consolidation or amalgamation, or effect any internal reorganization, if the surviving entity would be organized under any jurisdiction other than a jurisdiction of the United States;
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year; and
(h) the Obligors may dissolve or liquidate (i) any Immaterial Subsidiary or (ii) any Subsidiary so long as (x) in connection with such dissolution or liquidation, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to an Obligor and (y) such dissolution or liquidation is not materially adverse to the Lenders and the Borrower determines in good faith that such dissolution or liquidation is in the best interests of the Borrower.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Morgan Stanley Direct Lending Fund)
Fundamental Changes. The (a) No Borrower will, and MetLife will notnot permit the Company to, nor will it merge into or consolidate with any other Person, or permit any of the Subsidiary Guarantors to, enter other Person to merge into any transaction of merger or consolidation or amalgamationconsolidate with it, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions, any part ) all or substantially all of its assets, whether now owned or hereafter acquired, but assets (excluding (xi) assets (other than Investments) sold or disposed of in the ordinary course of business and (including to make expenditures ii) assets sold or disposed of cash between or among MetLife and/or its direct and 66 Five-Year Credit Agreement indirect wholly-owned Subsidiaries), or (in the normal course case of MetLife) all or any substantial part of the day-to-day business activities stock of Funding or the Company (in each case whether now owned or hereafter acquired), or liquidate or dissolve; provided, however, that all or a substantial part of the Borrower stock of Funding may be transferred so long as it remains directly or indirectly held by MetLife; and its Subsidiaries) provided further, that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(aA) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the a Borrower or any other Subsidiary Guarantor; provided that if any the Company, as the case may be, may merge into such Borrower or the Company, as the case may be, in a transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantorin which such Borrower or the Company, as the wholly owned Subsidiary Guarantor shall be case may be, is the continuing or surviving corporation;
, (bB) any Subsidiary Guarantor of the Borrower Funding may sell, leasetransfer, transfer lease or otherwise dispose of any or all of its assets (upon voluntary liquidation to MetLife or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be soldCompany, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sellincluding via liquidation, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such saleMetLife or the Company expressly assumes the obligations of Funding hereunder and under any promissory notes issued hereunder, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (iiC) either (x) a Borrower or the amount by which Company, as the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower case may be, may merge or consolidate with any other Person so long if such Borrower or the Company, as the case may be, is the surviving corporation.
(b) MetLife will not, and will not permit any of its Material Subsidiaries to, engage to any material extent in any business other than (i) businesses of the Borrower is type conducted by MetLife or any of its Subsidiaries on the continuing or surviving entity in such transaction Restatement Closing Date and businesses reasonably related thereto and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 businesses financial in any fiscal yearnature.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(ai) any Subsidiary Guarantor of the Borrower may be merged consolidate with or consolidated merge with or into any other Person, unless the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor Permitted Successor Corporation shall be the continuing or surviving corporation;
(bii) Dispose of (or permit its Subsidiaries to Dispose of, including Dispositions by mergers of Subsidiaries with non-wholly owned Subsidiaries or unrelated third parties), whether in one transaction or in any Subsidiary Guarantor series of related transactions arising on or after the date of this Agreement, more than fifty percent (50%) of the book value of the consolidated assets of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to and the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;Subsidiaries; or
(ciii) the capital stock except as permitted by subsection (b)(ii) below, consolidate, merge, Dispose of any Subsidiary assets, or permit its Subsidiaries to Dispose of the Borrower may be sold, transferred or assets in transactions otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
permitted under this subsection (da) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately if prior to such release is not diminished as a result of such release or (y) the Borrowing Base and immediately after giving effect to such release is at least 110% consolidation, merger, or Disposition, a Default or Event of the Covered Debt Amount;Default shall exist.
(fb) Subject to subsection (a)(iii) above, the Borrower may merge or consolidate with any other Person so long as following transactions are permitted at all times without restriction by this Section 7.04:
(i) (A) any Disposition by any Subsidiary of properties and assets to the Borrower is or to any other wholly-owned Subsidiary or (B) the continuing merger or surviving entity in such transaction and (ii) at consolidation of any Subsidiary into either the time thereof and after giving effect thereto, no Default shall have occurred Borrower or be continuingany other wholly-owned Subsidiary; and
(gii) any Disposition of (A) obsolete or worn-out property or real property no longer used or useful in the business of the Borrower or its Subsidiaries, (B) delinquent accounts receivable in the ordinary course of business for purposes of collection, and (C) inventory in the ordinary course of business.
(c) For purposes of subsection (a)(ii), the book value of the consolidated assets of the Borrower and each its Subsidiaries will be determined as of the Subsidiary Guarantors may selldate of, leaseand with respect to, transfer the Audited Financial Statements; provided that, if the Termination Date is extended pursuant to Section 2.14, such book value of the consolidated assets of the Borrower and its Subsidiaries will be determined as of the date of, and with respect to, the Current Financials most recently delivered prior to the Extension Effective Date pursuant to Section 6.01(a), and the provisions of the preceding subsection (a), will apply to transactions arising on or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as after the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearExtension Effective Date.
Appears in 1 contract
Fundamental Changes. The Borrower will not, nor and will it not permit any of the Subsidiary Guarantors its Consolidated Subsidiaries to, enter merge into or consolidate with any transaction of merger or consolidation or amalgamationother Person, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business other Person to merge into or property fromconsolidate with it, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions) its assets as an entirety or substantially as an entirety, or all or substantially all of the Capital Stock of any part of its assetsConsolidated Subsidiaries (in each case, whether now owned or hereafter acquired), but excluding or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (xi) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of any Person may merge into the Borrower and its Subsidiariesin a transaction in which the Borrower is the surviving corporation, (ii) any Consolidated Subsidiary may merge with any other Consolidated Subsidiary, and (yiii) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated merge with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing consolidate with or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation as an entirety or otherwise) substantially as an entirety to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be soldPerson, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (iA) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base and immediately after giving effect to such release is at least 110% of merger, consolidation or transfer, the Covered Debt Amount;
(f) Person with or into which the Borrower may shall ultimately merge or consolidate with any other Person or to whom the Borrower shall ultimately transfer its assets as an entirety or substantially as an entirety is in the Utility Business; (B) the Required Lenders shall have determined (so long as such determination is exercised in good faith and after consultation with the Borrower) that the rating of the senior unsecured long-term Indebtedness of the surviving Person of any such merger, consolidation or transfer of assets that is not guaranteed and does not benefit from any other credit enhancement shall be at least BBB- or higher by S&P and Baa3 or higher by ▇▇▇▇▇’▇ (iunless the requirements of this clause (B) shall have been waived by the Required Lenders); provided that the requirement of this clause (B) shall be deemed to have been satisfied if, prior to the consummation of any such merger, consolidation or transfer, the Borrower shall have delivered written evidence from each such Rating Agency to the effect that, upon such merger, consolidation or transfer, the applicable rating of such surviving Person would 65022253_5 be equal to or higher than the ratings specified in this clause (B); (C) in the case of any merger or consolidation or transfer of assets in which the Borrower is not the continuing surviving corporation, the Person formed by any such consolidation or surviving entity in transfer of assets or into which the Borrower shall be merged or consolidated or to which such transaction and (ii) at the time thereof and after giving effect thereto, no Default assets are transferred shall have occurred or be continuing; and
(g) executed an agreement in form reasonably satisfactory to the Borrower Administrative Agent containing an assumption by the surviving Person of the due and punctual performance of each obligation, agreement, covenant and condition of each of the Subsidiary Guarantors may sellLoan Documents to be performed or complied with by the Borrower; and (D) the Administrative Agent shall have received an opinion of counsel, leasein form and substance reasonably satisfactory to the Administrative Agent and its counsel, transfer or otherwise dispose with respect to the due authorization, execution, delivery, validity and enforceability of equipment or the assumption agreement referred to in clause (C) of this Section 6.02 and such other property or assets that do not consist of Investments so long matters as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearRequired Lenders may reasonably require.
Appears in 1 contract
Fundamental Changes. The Borrower will not, nor and will it not permit any of the Subsidiary Guarantors to, enter (i) whether pursuant to a Delaware LLC Division, Delaware LP Division or otherwise, merge into or consolidate with any transaction of merger or consolidation or amalgamationother Person, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors toother Person to merge into or consolidate with it, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, (ii) sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions, ) all or substantially all/any substantial part of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), but excluding (xiii) assets whether pursuant to a Delaware LLC Division, Delaware LP Division or otherwise, liquidate or dissolve, (other than Investmentsiv) sold divide into two or disposed of in more Persons, including becoming a Delaware Divided LLC or Delaware Divided LP (whether or not the ordinary course of business original Person survives such division) or (including v) create, or reorganize into, one or more series pursuant to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) belowa Delaware LLC Division or Delaware LP Division, Investments. Notwithstanding the foregoing provisions of this Sectionor except that, so long as no Default exists or would result therefrom:
(a) any Person (other than any Subsidiary Guarantor of the Borrower Owner) may be merged merge or consolidated consolidate with or into (i) the Borrower or any other Subsidiary Guarantor; Assignor, provided that if any such transaction the Borrower or Assignor, as applicable, shall be between a the continuing or surviving Person and there is no Change in Control, or (ii) any one or more other Subsidiaries, including newly formed Subsidiaries, provided that when any Subsidiary Guarantor and is merging or consolidating with or into another Subsidiary that is not a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationPerson or the other Subsidiary shall become a Subsidiary Guarantor in accordance with Section 5.11;
(b) any Subsidiary Guarantor may merge, dissolve or liquidate, or sell, transfer, lease or otherwise dispose of the any, all or substantially all of its assets, and Borrower may sell, lease, transfer or otherwise dispose of any or all of its direct and indirect Equity Interests in any Subsidiary, provided that if such Subsidiary owns a Property that had been included as an Unencumbered Property, Borrower shall have complied with the requirements of Section 2.23(b) for removal of such Unencumbered Property;
(c) Any Loan Party may sell, transfer, lease or otherwise dispose of any, all or substantially all of its assets (upon voluntary liquidation or otherwise) to any other Loan Party (or to any Person that becomes concurrently with such sale, transfer, lease or other disposition a Loan Party pursuant to Section 5.11); provided, that concurrently with such sale, transfer, lease or other disposition of an Unencumbered Property or Collateral, the Borrower Loan Party or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be other Person to which such assets were sold, transferred transferred, leased or otherwise disposed of to the Borrower or any wholly owned becomes a Subsidiary Guarantor and/or Assignor, as applicable, and complies with the provisions of the Borrower;Sections 2.23 and 5.11; and
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Any Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release that is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower Loan Party may merge into or consolidate with any other Person, or permit any other Person so long as to merge into or consolidate with it, or liquidate or dissolve, pursuant to a Delaware LLC Division or Delaware LP Division and may consummate any transaction described in clauses (iiv) the Borrower is the continuing or surviving entity in such transaction and (iiv) at above. For the time thereof and after giving effect theretoavoidance of doubt, if, as a result of any transaction permitted under this Section 6.03, any Unencumbered Property hereunder no Default shall have occurred or be continuing; and
(g) longer meets the Borrower and each definition of the Subsidiary Guarantors may sell, lease, transfer a “Unencumbered Property” or otherwise dispose fails to satisfy the requirements for inclusion in the pool of equipment Unencumbered Properties set forth herein, such Property will immediately upon such sale, transfer, lease or other property or assets that do not consist disposition cease to be included in the pool of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearUnencumbered Properties.
Appears in 1 contract
Fundamental Changes. The Borrower will notMerge into or consolidate with any other Person, nor will it or permit any of the Subsidiary Guarantors to, enter other Person to merge into any transaction of merger or consolidation or amalgamationconsolidate with it, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions, any part ) all or substantially all of its assetsassets (in each case, whether now owned or hereafter acquired), but excluding or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(ai) any Subsidiary Guarantor of the any Borrower may be merged or consolidated with or merge into such Borrower in a transaction in which such Borrower is the Borrower surviving entity, (ii) any Subsidiary of Holdings may merge into Holdings or any other Subsidiary Guarantor; of Holdings (provided that (A) if Kmart Corp. is a party to such merger, such merger shall be with Holdings, Kmart or a direct Subsidiary of Kmart Corp. and Kmart Corp. shall be the continuing or surviving entity, (B) if any such transaction shall be between a Subsidiary Guarantor and is a wholly owned Subsidiary Guarantorparty to such merger (other than with a Borrower or Holdings), the wholly owned such Subsidiary Guarantor shall be the continuing or surviving corporation;
entity or the continuing or surviving entity shall become a Subsidiary Guarantor and (bC) if SRAC is a party to such merger, then Sears shall comply with the requirements of Section 6.01(d)), (iii) any Subsidiary Guarantor of Holdings other than the Borrower Borrowers may sell, leasetransfer, transfer lease or otherwise dispose of any or all of its assets to any Borrower, to Holdings or to a Subsidiary of Holdings (upon voluntary liquidation provided that if such sale or otherwise) to transfer includes Collateral and the transferee is not the Borrower or any wholly owned Holdings, the transferee shall be a Subsidiary Guarantor of the Borrower;
Guarantor), (civ) the capital stock of any Subsidiary of Holdings other than the Borrower may be sold, transferred Borrowers or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors Sears may sell, transfer transfer, lease or otherwise dispose of Investments its assets to a Person that is not a Subsidiary or merge with a Person that is not a Subsidiary, in each case pursuant to a Permitted Disposition, (v) any Subsidiary of Holdings other than to a Financing Subsidiarythe Borrowers, Sears or any Material Subsidiary Guarantor (except, in the case of SRAC, as provided in Section 6.01(d)) so long as after giving effect to such sale, transfer may liquidate or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base dissolve if Holdings and the Borrower delivers Borrowers determine in good faith that such liquidation or dissolution is in the best interests of Holdings, the Borrowers, Sears, the other Material Subsidiary Guarantors and their Subsidiaries and is not disadvantageous in any material respect to Holdings, the Administrative Agent Borrowers, Sears, the other Material Subsidiary Guarantors or the Lenders; provided, that a certificate Material Subsidiary Guarantor may liquidate or dissolve into a Person that is a Subsidiary of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount Holdings immediately prior to such release liquidation or dissolution, if the continuing or surviving entity is or shall become a Subsidiary Guarantor in accordance with Section 6.01(i)(ii), and (vi) Holdings or any Subsidiary of Holdings may merge with a Person that is not diminished as a result Subsidiary of such release or (y) the Borrowing Base Holdings immediately after giving effect prior to such release is at least 110% merger if, in the case of the Covered Debt Amount;
(f) the any merger involving Holdings, a Borrower may merge or consolidate with any other Person so long a Subsidiary Guarantor, Holdings, such Borrower or such Subsidiary Guarantor, as (i) the Borrower applicable, is the continuing or surviving entity or, in such transaction and (ii) at the time thereof and after giving effect theretocase of any merger involving a Subsidiary Guarantor, no Default the continuing or surviving entity shall have occurred or be continuingbecome a Subsidiary Guarantor in accordance with Section 6.01(i)(ii); and
(g) provided that contemporaneously with the Borrower and each occurrence of any of the Subsidiary Guarantors may sellactions permitted to be taken pursuant to this clause (b), lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearBorrowers shall furnish to the Co-Collateral Agents an updated Borrowing Base Certificate.
Appears in 1 contract
Fundamental Changes. The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, Person except for purchases or acquisitions of Investments inventory and other assets property to be sold or used in the normal ordinary course of the day-to-day business activities of the Borrower business, Investments permitted under Section 7.05 and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan DocumentCapital Expenditures. The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsbusiness or property, whether now owned or hereafter acquiredacquired (including, without limitation, receivables and leasehold interests, but excluding (x) assets obsolete or worn out property, tools or equipment no longer used or useful in its business and (y) any inventory or other than Investments) property sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day and on ordinary business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investmentsterms). Notwithstanding the foregoing provisions of this SectionSection 7.04:
(a) any Restricted Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary GuarantorRestricted Subsidiary; provided that if any such transaction shall be between a Restricted Subsidiary Guarantor and a wholly owned Wholly Owned Restricted Subsidiary Guarantorof the Company, the wholly owned a Wholly Owned Restricted Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Restricted Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) to the Borrower Company or any wholly owned Wholly Owned Restricted Subsidiary Guarantor of the BorrowerCompany;
(c) the capital stock of any Restricted Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower Company or any wholly owned Wholly Owned Restricted Subsidiary Guarantor of the BorrowerCompany;
(d) the Obligors Company or any of its Restricted Subsidiaries may sellsell assets (including, transfer or otherwise dispose without limitation, capital stock issued by any of Investments their respective Subsidiaries) for fair market value provided that (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loansi) the Covered Debt Amount does aggregate amount of Disposition Investments and other non-cash proceeds (valued at the fair market value thereof determined in good faith by the Board of Directors of the Company) received by the seller in the sale of any asset shall not exceed 25% (or, in the Borrowing Basecase of real property and improvements located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ 75%) of the total sales price for such asset (including (A) the amount of liabilities, if any, assumed as a portion of the sales price and (B) the amount of any repayment by the seller of the principal of Indebtedness to the extent that (X) such Indebtedness is secured by a Lien on such asset and (Y) the seller is required by the transferee of (or holder of a Lien on) such assets to repay such principal as a condition to the purchase of such asset) and (ii) no more than 10% of EBITDA for any fiscal year of the Company shall be attributable to all such assets so sold in the following fiscal year of the Company;
(e) the Obligors Company or any Wholly Owned Restricted Subsidiary of the Company may sellacquire any business, transfer and the related assets, of any other Person including of an Unrestricted Subsidiary (whether by way of purchase of assets or otherwise dispose of Investments to a Financing Subsidiary stock, by merger or consolidation or otherwise), so long as as:
(i) such Acquisition (if by purchase of assets, merger or consolidation) shall be effected in such manner so that the acquired business, and the related assets, are owned either by the Company or a Wholly Owned Restricted Subsidiary of the Company and, if effected by merger or consolidation involving the Company, the Company shall be the continuing or surviving entity and, if effected by merger or consolidation involving a Wholly Owned Restricted Subsidiary of the Company, such Wholly Owned Restricted Subsidiary shall be the continuing or surviving entity;
(ii) such Acquisition (if by purchase of stock) shall be effected in such manner so that the acquired entity becomes a Wholly Owned Restricted Subsidiary of the Company;
(iii) after giving effect to such saleAcquisition the Company shall be in compliance with Section 7.09 (the determination of such compliance to be calculated on a pro forma basis, transfer or other disposition (as at the end of and for the period of four fiscal quarters most recently ended prior to the date of such Acquisition for which financial statements of the Company and its Restricted Subsidiaries are available, under the assumption that such Acquisition shall have occurred, and any concurrent acquisitions Indebtedness in connection therewith shall have been incurred, at the beginning of Investments or payment the applicable period, and under the assumption that interest for such period had been equal to the actual weighted average interest rate in effect for the Loans hereunder on the date of outstanding Loanssuch Acquisition) and, in the Covered Debt Amount does not event that the aggregate amount of expenditures in respect of such Acquisition shall exceed $100,000,000, the Borrowing Base and the Borrower delivers Company shall have delivered to the Administrative Agent a certificate of a Financial Officer showing calculations in reasonable detail to such effect and demonstrate compliance with this subclause (iiiii); and
(iv) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof Acquisition and after giving effect thereto, no Default shall have occurred or and be continuing; and
(gf) the Borrower Company and each of the Subsidiary Guarantors its Restricted Subsidiaries may sell, lease, transfer or otherwise dispose of equipment any one or more outdoor properties in exchange for one or more other property or assets that do not consist of Investments outdoor properties (including logo signage businesses), so long as the percentage of the aggregate amount EBITDA attributable to the properties so disposed of all such sales, leases, transfer and dispositions during any single fiscal year does not exceed $5,000,000 10% of the aggregate EBITDA of the Company and its Restricted Subsidiaries for the most recently-ended fiscal year (such EBITDA to be determined for these purposes without giving effect to the last paragraph of the definition of such term in any fiscal yearSection 1.01).
Appears in 1 contract
Fundamental Changes. The Borrower will notMerge into or consolidate with any other Person, nor will it or permit any of the Subsidiary Guarantors to, enter other Person to merge into any transaction of merger or consolidation or amalgamationconsolidate with it, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions, any part ) all or substantially all of its assetsassets (in each case, whether now owned or hereafter acquired), but excluding or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(ai) any Subsidiary Guarantor of the any Borrower may be merged or consolidated with or merge into such Borrower in a transaction in which such Borrower is the Borrower surviving entity, (ii) any Subsidiary of Holdings may merge into Holdings or any other Subsidiary Guarantor; of Holdings (provided that (A) if Kmart Corp. is a party to such merger, such merger shall be with Holdings, Kmart or a direct Subsidiary of Kmart Corp. and Kmart Corp. shall be the continuing or surviving entity, (B) if any such transaction shall be between a Subsidiary Guarantor and is a wholly owned Subsidiary Guarantorparty to such merger (other than with a Borrower or Holdings), the wholly owned such Subsidiary Guarantor shall be the continuing or surviving corporation;
entity or the continuing or surviving entity shall become a Subsidiary Guarantor and (bC) if SRAC is a party to such merger, then Sears shall comply with the requirements of Section 6.01(d)), (iii) any Subsidiary Guarantor of Holdings other than the Borrower Borrowers may sell, leasetransfer, transfer lease or otherwise dispose of any or all of its assets to any Borrower, to Holdings or to a Subsidiary of Holdings (upon voluntary liquidation provided that if such sale or otherwise) to transfer includes Collateral and the transferee is not the Borrower or any wholly owned Holdings, the transferee shall be a Subsidiary Guarantor of the Borrower;
Guarantor), (civ) the capital stock of any Subsidiary of Holdings other than the Borrower may be sold, transferred Borrowers or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors Sears may sell, transfer transfer, lease or otherwise dispose of Investments its assets to a Person that is not a Subsidiary or merge with a Person that is not a Subsidiary, in each case, pursuant to a Permitted Disposition, (v) any Subsidiary of Holdings other than to a Financing Subsidiarythe Borrowers, Sears or any Material Subsidiary Guarantor (except, in the case of SRAC, as provided in Section 6.01(d)) so long as after giving effect to such sale, transfer may liquidate or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base dissolve if Holdings and the Borrower delivers Borrowers determine in good faith that such liquidation or dissolution is in the best interests of Holdings, the Borrowers, Sears, the other Material Subsidiary Guarantors and their Subsidiaries and is not disadvantageous in any material respect to Holdings, the Administrative Agent Borrowers, Sears, the other Material Subsidiary Guarantors or the Lenders; provided, that a certificate Material Subsidiary Guarantor may liquidate or dissolve into a Person that is a Subsidiary of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount Holdings immediately prior to such release liquidation or dissolution, if the continuing or surviving entity is or shall become a Subsidiary Guarantor in accordance with Section 6.01(i)(ii), (vi) Holdings or any Subsidiary of Holdings may merge with a Person that is not diminished as a result Subsidiary of such release or (y) the Borrowing Base Holdings immediately after giving effect prior to such release is at least 110% merger if, in the case of the Covered Debt Amount;
(f) the any merger involving Holdings, a Borrower may merge or consolidate with any other Person so long a Subsidiary Guarantor, Holdings, such Borrower or such Subsidiary Guarantor, as (i) the Borrower applicable, is the continuing or surviving entity or, in such transaction the case of any merger involving a Subsidiary Guarantor, the continuing or surviving entity shall become a Subsidiary Guarantor in accordance with Section 6.01(i)(ii) and (iivii) at the time thereof and after giving effect thereto, no Default shall have occurred any Credit Card Royalty Securitization Subsidiary may sell or be continuing; and
(g) the Borrower and each otherwise finance or Dispose of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as subject to the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearCredit Card Royalty Securitization.
Appears in 1 contract
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve or divide itself (or suffer any liquidation liquidation, dissolution or dissolutiondivision). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock Capital Stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold any transaction permitted under Section 6.01(f), 6.05 or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments6.12. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly wholly-owned Subsidiary Guarantor, the wholly wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock Capital Stock of any Subsidiary of the Borrower any Obligor may be sold, transferred or otherwise disposed of (including by way of consolidation or merger)
(i) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;Borrower or (ii) so long as such transaction results in an Obligor receiving the proceeds of such disposition, to any other Person (excluding any Affiliate of the Borrower that is not an Obligor at any time a Specified Default or an Event of Default has occurred and is continuing); provided that in the case of this clause (ii), if such Subsidiary is a Subsidiary Guarantor or holds any Portfolio Investments, immediately after giving effect to such sale, transfer or disposition and any Concurrent Transactions, the Borrower is in pro forma compliance with Section 6.07(b), the Covered Debt Amount does not exceed the Borrowing Base and either (x) the amount of any excess availability under the Borrowing Base immediately prior to such disposition is not diminished as a result of such disposition or (y) the Adjusted Gross Borrowing Base immediately after giving effect to such disposition is at least 110% of the Covered Debt Amount; 128 Revolving Credit Agreement
(d) the Obligors may sell, transfer sell or otherwise dispose of Investments assets (other than to a Financing Subsidiary, an Excluded Asset or any other Subsidiary that is not a Subsidiary Guarantor) in the ordinary course of business (including to make expenditures of cash and Cash Equivalents in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and the use of cash and Cash Equivalents in the ordinary course of business);
(e) the Obligors may (i) sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise Dispose of assets to a Financing Subsidiary, an Excluded Asset or any other Subsidiary that is not a Subsidiary Guarantor or (ii) repurchase from any Financing Subsidiary, Excluded Asset or any other Subsidiary that is not a Subsidiary Guarantor any assets transferred or contributed, directly or indirectly, to such Financing Subsidiary or Excluded Asset or any other Subsidiary that is not a Subsidiary Guarantor, so long as as, in each case of clause (i) or clause (ii), (x) immediately after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding LoansConcurrent Transaction) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (iiy) either (x1) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release sale, transfer or other disposition is not diminished as a result of such release sale, transfer or other disposition or (y2) the Adjusted Gross Borrowing Base immediately after giving effect to such release sale, transfer or other disposition is at least 110% of the Covered Debt Amount; provided that, for the purposes of this clause (y) and in connection with the organization of any CLO Security, the Borrowing Base and the Covered Debt Amount, as applicable, shall be tested as of the pricing date for such CLO Security;
(f) the Borrower may merge or consolidate with with, or acquire all or substantially all of the assets of, any other Person (including any Subsidiary Guarantor) so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) (x) with respect to any Specified Purchase, as of the date of entering into the applicable agreement governing such merger, consolidation or acquisition or (y) with respect to any other merger, consolidation or acquisition at the time thereof and thereof, and, in each case, after giving pro forma effect theretothereto and any Concurrent Transaction, no Event of Default shall have occurred or be continuing; andprovided that, in no event shall the Borrower enter in any transaction of merger or consolidation or amalgamation, or effect any internal reorganization, if the surviving entity would be organized under any jurisdiction other than a jurisdiction of the United States;
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year;
(h) the Obligors may transfer assets to an Excluded Asset or a Financing Subsidiary (x) for the sole purpose of facilitating the transfer of assets from one Excluded Asset or Financing Subsidiary (or a Subsidiary that was an Excluded Asset or a Financing Subsidiary immediately prior to such disposition) to another Excluded Asset or Financing Subsidiary, directly or indirectly through such Obligor (such assets, the “Transferred Assets”); provided that (i) no 129 Revolving Credit Agreement Specified Default or Event of Default exists and is continuing at such time, (ii) the Covered Debt Amount shall not exceed the Borrowing Base at such time, (iii) the Transferred Assets were transferred to such Obligor by the transferor Financing Subsidiary on the same Business Day that such assets are transferred by such Obligor to the transferee Excluded Asset or Financing Subsidiary and (iv) following such transfer such Obligor has no liability, actual or contingent, with respect to the transferred assets other than Standard Securitization Undertakings, and (y) in connection with a Back-to-Back Transaction;
(i) the Obligors may sell, transfer or otherwise dispose of direct ownership interests in any Excluded Asset to any Subsidiary that is not an Obligor, if immediately after giving effect to such sale, transfer or other disposition and any Concurrent Transactions, no more than 25% of the Value of all Obligors’ direct ownership interests in all Excluded Assets (calculated as of the date of the most recently delivered financial statements on or prior to the date of such sale, transfer or other disposition) are subject to Excluded Asset Liens or have been sold, transferred or otherwise disposed of to a Subsidiary that is not an Obligor pursuant to this clause (k); provided that, notwithstanding that a transfer may violate such 25% limitation, such transfer shall nevertheless be permitted if it is required by law, rule, regulation or interpretive position of the SEC; and
(j) the Borrower or the other Obligors may dissolve or liquidate (i) any Immaterial Subsidiary or (ii) any other Subsidiary so long as, with respect to this clause (ii), (A) in connection with such dissolution or liquidation, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to an Obligor (or, if such Subsidiary is an Excluded Asset, to another Excluded Asset) and (B) such dissolution or liquidation is not materially adverse to the Lenders and the Borrower determines in good faith that such dissolution or liquidation is in its best interests; provided that in no event shall the Borrower enter into any transaction of merger or consolidation or amalgamation, or effect any internal reorganization, if the surviving entity would be organized under any jurisdiction other than a jurisdiction of the United States.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (AB Private Lending Fund)
Fundamental Changes. The Borrower will shall not, nor will shall it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, directly or indirectly, (i) consummate any Acquisition or (ii) enter into any transaction of merger or merger, consolidation or amalgamation, or liquidate, wind wind-up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business ) or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, assign, lease, transfer or otherwise dispose ofof (or agree to do any of the foregoing at any future time) all or substantially all of its property, in one transaction business or a series of assets; provided, however, that so long as prior to or simultaneously with such transactions, any part of Borrower has complied with, and has caused its assetsSubsidiaries to comply with, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this SectionSection 7.11:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into Borrower so long as Borrower is the surviving corporation or with or into any one or more Wholly-Owned Subsidiaries of Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or any other IRIC); provided, however, that (i) the Wholly-Owned Subsidiary Guarantor; provided that if any such transaction or Subsidiaries shall be the surviving corporation and (ii) in the case of any merger or consolidation between Subsidiaries at least one of which is a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor surviving Person shall be or become a party to the continuing or surviving corporationRestricted Subsidiary Guarantee Agreement);
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned other Wholly-Owned Subsidiary Guarantor of the BorrowerBorrower (other than an Unrestricted Subsidiary);
(c) the capital stock of any Subsidiary of the Borrower may be soldvoluntarily liquidate, transferred wind-up or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrowerdissolve;
(d) the Obligors any transaction permitted pursuant to Section 8.6(e) may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Basebe consummated;
(e) agreements to conduct the Obligors transactions referred to in clauses (a) through (d) above may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amountbe entered into;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 1 contract
Sources: Credit Agreement (Huntsman LLC)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock Capital Stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (w) any transaction permitted under Section 6.05 or 6.12, (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash Cash and Cash Equivalents in the normal ordinary course of business) (other than the day-to-day business activities transfer of the Borrower and its Subsidiaries) and Portfolio Investments to a Subsidiary that is not a Subsidiary Guarantor), (y) subject to the provisions of clauses (d) and clause (e) below, Investmentsthe transfer or sale of Portfolio Investments to a Subsidiary that is not a Subsidiary Guarantor and (z) subject to the provisions of clause (c) below, any Obligor’s ownership interest in any Excluded Asset or any Immaterial Subsidiary. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationcorporation or such other Person that is the continuing or surviving entity in such transaction becomes a Subsidiary Guarantor and expressly assumes, in writing, all the obligations of a Subsidiary Guarantor under the Loan Documents;
(b) any Subsidiary Guarantor of the Borrower Obligor may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock Capital Stock of any Subsidiary of the Borrower any Obligor may be sold, transferred (including a deemed transfer resulting from a division or plan of division) or otherwise disposed of (including by way of consolidation or merger)
(i) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;Borrower or (ii) so long as such transaction results in an Obligor receiving the proceeds of such disposition, to any other Person (excluding any Affiliate of the Borrower that is not an Obligor at any time a Specified Default or an Event of Default has occurred and is continuing), provided, that in the case of this clause (ii), if such Subsidiary is a Subsidiary Guarantor or holds any Portfolio Investments, the Borrower would not have been prohibited from disposing of all such Portfolio Investments to such other Person under any other term of this Agreement; 777795439
(d) the Obligors may sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose Dispose of Investments (other than to a Financing SubsidiarySubsidiary that is not a Subsidiary Guarantor) so long as as, immediately after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) Concurrent Transaction, the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may (i) sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of Cash, Cash Equivalents and Portfolio Investments (other than the ownership or economic interests in any Excluded Asset, which shall be subject to clause (e) below) to any Subsidiary that is not a Financing Subsidiary Guarantor or (ii) repurchase from any Excluded Asset (or a Subsidiary that was an Excluded Asset immediately prior to such disposition) any assets transferred or contributed, directly or indirectly, to such Excluded Asset (or a Subsidiary that was an Excluded Asset immediately prior to such disposition) pursuant to this Section 6.03, so long as as, in each case of clause (i) or clause (ii), immediately after giving effect to such sale, transfer or transfer, other disposition (or such repurchase and any concurrent acquisitions of Investments or payment of outstanding LoansConcurrent Transactions, (x) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such then in effect and (iiy) either (x1) the amount by which of any excess availability under the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release sale, transfer, other disposition or repurchase is not diminished as a result of such release sale, transfer, other disposition or repurchase or (y2) the Adjusted Gross Borrowing Base immediately after giving effect to such release sale, transfer, other disposition or repurchase is at least 110% of the Covered Debt Amount; provided that, for the purposes of this clause (y) and in connection with the organization of any CLO Security, the Borrowing Base, the Adjusted Gross Borrowing Base and the Covered Debt Amount, as applicable, shall be tested as of the pricing date for such CLO Security;
(f) the Borrower may merge or consolidate with (or acquire all or substantially all of the assets of) any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and immediately after giving effect theretothereto and any Concurrent Transaction, no Specified Default or Event of Default shall have occurred or and be continuing; andprovided that, in no event shall the Borrower enter in any transaction of merger or consolidation or amalgamation, or effect any internal reorganization, if the surviving entity would be organized under any jurisdiction other than a jurisdiction of the United States;
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer transfers and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year;
(h) the Obligors may dissolve or liquidate (i) any Immaterial Subsidiary or (ii) any other Subsidiary so long as, with respect to this clause (ii), (x) in connection with such dissolution or liquidation, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to an Obligor (or, if such Subsidiary is an Excluded Asset, to another Excluded Asset) and (y) such dissolution or liquidation is not materially adverse to the Lenders and the Borrower determines in good faith that such dissolution or liquidation is in the best interests of the Borrower; and
(i) the Obligors may transfer assets that such Obligor would otherwise be permitted to own to an Excluded Asset for the sole purpose of facilitating the transfer of assets 777795439 from one (1) Excluded Asset (or a Subsidiary that was an Excluded Asset immediately prior to such disposition) to another Excluded Asset, directly or indirectly through such Obligor (such assets, the “Transferred Assets”); provided that (i) no Event of Default exists and is continuing at such time or would result from any such transfer to or by such Obligor, (ii) immediately after giving effect to such transfer and any Concurrent Transaction, the Covered Debt Amount shall not exceed the Borrowing Base at such time, (iii) the Transferred Assets are transferred to such Obligor by the transferor Excluded Asset on the same Business Day that such assets are transferred by such Obligor to the transferee Excluded Asset, and (iv) following such transfer such Obligor has no liability, actual or contingent, with respect to the Transferred Assets other than Standard Securitization Undertakings (for the avoidance of doubt, in determining for the purposes of this Agreement whether any Obligor has received Net Cash Proceeds in respect of any transaction involving a Transferred Asset, the transfer of such Transferred Asset to and from such Obligor shall be deemed to be a single transaction).
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Morgan Stanley Direct Lending Fund)
Fundamental Changes. The Neither the Borrower nor Parent will, and will not, nor will it not permit any of the Collateral Subsidiary Guarantors to, enter :
(a) merge into or consolidate with any transaction of merger or consolidation or amalgamationother Person, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business other Person to merge into or property fromconsolidate with it, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions, any part ) all or substantially all of the assets of the Borrower or all or substantially all of the stock of its assetsSubsidiaries (in each case, whether now owned or hereafter acquired), but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged liquidate or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationdissolve;
(b) any Subsidiary Guarantor of the Borrower may sell, leasetransfer, transfer lease or otherwise dispose of any the Mortgaged Property, or all of its assets (upon voluntary liquidation or otherwise) the Real Property subject to the Borrower or any wholly owned Subsidiary Guarantor Pledged Interest outside of the Borrower;ordinary course of business.
(c) Notwithstanding anything contained herein to the capital stock contrary, Borrower shall be permitted to transfer any direct or indirect interests in any Collateral Subsidiary to one or more of any Subsidiary Affiliates of Borrower (“Affiliate Transfer”) provided that each of the following conditions is satisfied:
(i) Borrower provides Administrative Agent with at least 30 days prior written notice of the proposed Affiliate Transfer.
(ii) At the time of the proposed Affiliate Transfer, no Event of Default has occurred and is continuing and no event or condition has occurred and is continuing that, with the giving of notice or the passage of time, or both, would become an Event of Default.
(iii) Borrower pays or reimburses Administrative Agent, upon demand, for all third-party costs and expenses incurred by Administrative Agent in connection with the Affiliate Transfer.
(iv) Administrative Agent determines, in Administrative Agent’s reasonable discretion, that the proposed transferee meets Administrative Agent’s eligibility, credit, management and other standards.
(v) Borrower shall have executed and delivered to Administrative Agent, such documents as may be sold, transferred or otherwise disposed of required by Administrative Agent to maintain Administrative Agent Agent’s security interests in Borrower’s ownership interests in the Collateral Subsidiary to the Borrower or any wholly owned Subsidiary Guarantor of same extent as such pledge prior to the BorrowerAffiliate Transfer;
(dvi) Administrative Agent receives organizational charts reflecting the Obligors may sell, transfer or otherwise dispose structure of Investments (other than Borrower prior to a Financing Subsidiary) so long as and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;Affiliate Transfer.
(evii) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) search confirming that the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release transferee is not diminished as a result on the list of such release Specially Designated Nationals or (y) other blocked persons published by the Borrowing Base immediately after giving effect to such release is at least 110% U.S. Office of Foreign Assets Control, or on the Covered Debt Amount;list of persons or entities prohibited from doing business with the Department of Housing and Urban Development.
(fviii) For purposes of this Section, “control” includes the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each role of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearinvestment advisor.
Appears in 1 contract
Sources: Revolving Credit Agreement (Nexpoint Multifamily Capital Trust, Inc.)
Fundamental Changes. The (a) Each of the Parent and the Borrower will not, nor and will it not permit any of the Restricted Subsidiary Guarantors to, enter merge into or consolidate with any transaction of merger or consolidation or amalgamationother Person, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business other Person to merge into or property fromconsolidate with it, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions, any part ) all or substantially all of its assets, or all or substantially all of the stock of any of the Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), but excluding (x) assets (other than Investments) sold except as permitted pursuant to Section 6.13, or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) belowliquidate or dissolve, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that except that, if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and immediately after giving effect thereto, thereto no Default shall have occurred or and be continuing; and
, (gi) any Person may merge into the Parent or the Borrower in a transaction in which the Parent or the Borrower, respectively, is the surviving Person, (ii) any Person may merge into any Guarantor in a transaction in which the surviving entity is wholly- owned, directly or indirectly, by the Borrower and each such surviving entity is such Guarantor or expressly assumes in writing (in form and substance satisfactory to the Administrative Agent) all obligations of such Guarantor under the Loan Documents, (iii) any Person may merge into any Restricted Subsidiary Guarantors that is not a Guarantor in a transaction in which the surviving entity is wholly-owned, directly or indirectly, by the Borrower and, if such surviving entity constitutes a Material Domestic Subsidiary, the Parent, the Borrower and such surviving entity comply with the requirements of Section 5.13, (iv) any Restricted Subsidiary may sell, leasetransfer, transfer lease or otherwise dispose of equipment its assets to the Parent, the Borrower or other property another Restricted Subsidiary and (v) any Restricted Subsidiary may liquidate or assets dissolve if the Parent or the Borrower determines in good faith that do such liquidation or dissolution is in the best interests of the Parent and the Borrower and is not consist of Investments so long as materially disadvantageous to the aggregate amount of all Lenders; provided that any such salesmerger involving a Person that is not a wholly-owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.04.
(b) The Parent and the Borrower will not, leasesand will not permit any Restricted Subsidiary to, transfer and dispositions does not exceed $5,000,000 engage to any material extent in any fiscal yearbusiness other than businesses of the type conducted by the Parent, the Borrower and the Restricted Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto. From and after the date hereof, the Parent and the Borrower will not, and will not permit any Restricted Subsidiary to, acquire or make any other expenditures (whether such expenditure is capital, operating or otherwise) in or related to any Oil and Gas Properties not located within the geographical boundaries of the United States or form or acquire any Subsidiary organized under any jurisdiction outside of the United States.
Appears in 1 contract
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Portfolio Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with with, or acquire all or substantially all of the assets of, any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Sixth Street Specialty Lending, Inc.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, enter into any transaction of merger or merger, division, consolidation or amalgamation, or liquidate or provisionally liquidate, wind up or dissolve itself (or suffer any liquidation, provisional liquidation or dissolution). The Borrower will not, nor will it permit any of its Subsidiaries (other than Financing Subsidiaries) be formed or otherwise reorganize under the Subsidiary Guarantors laws of a jurisdiction other than any jurisdiction in the United States. The Borrower will not, nor will it permit any of its Subsidiaries to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the its Subsidiaries to,Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including, without limitation, Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than including Cash and Cash Equivalents but excluding Portfolio Investments) sold or disposed of in the ordinary course of business of the Borrower and its Subsidiaries (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject ), in each case, other than sales or dispositions to the provisions of clauses (d) and (e) belowany Financing Subsidiary, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any CFC, any Transparent Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if Restricted Investment. The Borrower will not, nor will it permit any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor Guarantors to, change its name, jurisdiction of the Borrower;
(c) the capital stock formation, chief executive office and/or principal place of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after business without giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate minimum of a Financial Officer to thirty (30) days’ (or such effect and (iilesser period as the Administrative Agent may reasonably agree) either written notice thereof. The Borrower will not, nor will it permit any of its Subsidiaries to, (x) file a certificate of division; adopt a plan of division or otherwise take any action to effectuate a division pursuant to Section 18-217 of the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior Delaware Limited Liability Company Act (or any analogous action taken pursuant to such release is not diminished as a result of such release applicable law with respect to any corporation, limited liability company, partnership or other entity) or (y) the Borrowing Base immediately after giving effect to such release is at least 110% create or reorganize into one or more series under Section 18-215 or 18-218 of the Covered Debt Amount;
Delaware Limited Liability Company Act (f) the Borrower may merge or consolidate any analogous action pursuant to applicable law with respect to any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect theretocorporation, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment limited liability company or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal yearentity).
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Monroe Capital Income Plus Corp)
Fundamental Changes. (a) The Borrower will not, nor and will it not permit any of the Subsidiary Guarantors to, enter merge into or consolidate with any transaction of merger or consolidation or amalgamationother Person, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business other Person to merge into or property fromconsolidate with it, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, leasetransfer, transfer lease or otherwise dispose of, of (in one transaction or in a series of transactions, any part ) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) belowliquidate or dissolve, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that except that, if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and immediately after giving effect thereto, thereto no Default or Event of Default shall have occurred or and be continuing; and
continuing (gi) any Subsidiary may merge into the Borrower and each of in a transaction in which the Borrower is the surviving corporation, (ii) any Subsidiary may merge into any other Subsidiary in a transaction in which the surviving entity is a Subsidiary, provided that if the Subsidiary Guarantors that is to be merged out of existence is a Guarantor, the surviving entity is a Guarantor, (iii) any Subsidiary may sell, leasetransfer, transfer lease or otherwise dispose of equipment its assets to the Borrower or other property to another Subsidiary, provided that if the Subsidiary selling, transferring or otherwise disposing of its assets is a Guarantor, the transferee is a Loan Party and (iv) any Subsidiary that do is not consist a Loan Party may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of Investments so long as the aggregate amount Borrower and is not materially disadvantageous to the Lenders; provided that any such transaction described in clauses (i) - (iii) above involving a Subsidiary that is not a wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of all such salesits Subsidiaries to, leases, transfer and dispositions does not exceed $5,000,000 engage to any material extent in any fiscal yearbusiness other than businesses of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto, including payment and transaction processing businesses.
Appears in 1 contract
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries or Immaterial Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries or Immaterial Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including, without limitation, Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than including Cash and Cash Equivalents but excluding Portfolio Investments) sold or disposed of in the ordinary course of business of the Borrower and its Subsidiaries (other than the Financing Subsidiaries) (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries (other than the Financing Subsidiaries)) and (y) subject to the provisions of clauses (de) and (ef) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) any Subsidiary of the Borrower may be liquidated or dissolved; provided that (i) in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower and (ii) the Borrower determines in good faith that such liquidation is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(d) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(de) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base;
(ef) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (or grant participation interests in Portfolio Investments), Cash and Cash Equivalents to a Financing Subsidiary so long as (i) prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and no Default exists and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect effect, and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110120% of the Covered Debt Amount;
(fg) the Borrower and its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year;
(h) the Borrower may merge or consolidate with any other Person Person, so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or and be continuing; and
(gi) an Obligor may transfer assets to a Financing Subsidiary for the sole purpose of facilitating the transfer of assets from one Financing Subsidiary (or a Subsidiary that was a Financing Subsidiary immediately prior to such disposition) to another Financing Subsidiary, directly or indirectly through such Obligor (such assets, the “Transferred Assets”), provided, that (i) no Default exists or is continuing at such time, (ii) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does Covered Debt Amount shall not exceed $5,000,000 in any fiscal yearthe Borrowing Base at such time and (iii) the Transferred Assets were transferred to such Obligor by the transferor Financing Subsidiary on the same Business Day that such assets are transferred by such Obligor to the transferee Financing Subsidiary.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Sierra Income Corp)
Fundamental Changes. (a) The Borrower will not, nor and will it not permit any of the Subsidiary Guarantors to, enter merge into or consolidate with any transaction of merger or consolidation or amalgamationother Person, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business other Person to merge into or property fromconsolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) assets (including capital stock of, of Subsidiaries) constituting all or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other substantially all the assets in the normal course of the day-to-day business activities of the Borrower and its the Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or on a series of transactions, any part of its assets, consolidated basis (whether now owned or hereafter acquired), but excluding (x) assets (other than Investments) sold or disposed of or, in the ordinary course case of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that Material Subsidiary, liquidate or dissolve, except that, if any such transaction at the time thereof and immediately after giving effect thereto no Default shall have occurred and be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(bi) any Subsidiary Guarantor of may merge into the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to in a transaction in which the Borrower or any wholly owned Subsidiary Guarantor of is the Borrower;
surviving corporation, (cii) the capital stock of any Subsidiary of may merge into any other Subsidiary in a transaction in which the Borrower surviving entity is a Subsidiary; provided, however, that (A) no Material Subsidiary may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned merge into a Foreign Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect unless prior to such salemerger, transfer or other disposition such Material Subsidiary was also a Foreign Subsidiary), and (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (iB) after giving effect to such saletransaction, transfer the Guarantee and Collateral Requirement remains satisfied, (iii) any Permitted Asset Disposition made in accordance with Section 6.06 and involving the sale of a Subsidiary may be effected by a merger of such Subsidiary, (iv) any Subsidiary may sell, transfer, lease or other disposition (and any concurrent acquisitions otherwise dispose of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and its assets to the Borrower delivers or to the Administrative Agent a certificate another Subsidiary; provided, however, that (A) no Material Subsidiary may sell, transfer, lease or otherwise dispose of a Financial Officer its assets to such effect and any Foreign Subsidiary (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately unless prior to such release is not diminished as sale, transfer, lease or disposition such Material Subsidiary was also a result of such release or Foreign Subsidiary), and (yB) the Borrowing Base immediately after giving effect to such release is at least 110% of transaction, the Covered Debt Amount;
Guarantee and Collateral Requirement remains satisfied, and (fv) any Subsidiary may liquidate or dissolve if the Borrower may merge determines in good faith that such liquidation or consolidate with any other Person so long as (i) dissolution is in the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) best interests of the Borrower and each is not materially disadvantageous to the Lenders; provided that any such merger involving a Person that is not a wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.05.
(b) The Borrower will not, and will not permit any of the Subsidiary Guarantors may sellSubsidiaries to, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 engage to any material extent in any fiscal yearbusiness other than businesses of the type conducted by the Borrower and the Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto.
Appears in 1 contract
Sources: Revolving Credit Agreement (Service Corporation International)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve or divide itself (or suffer any liquidation or dissolutiondissolution or division). The Borrower will not reorganize under the laws of a jurisdiction other than any jurisdiction in the United States. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock Capital Stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (w) any transaction permitted under Section 6.05 or 6.12, (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash Cash and Cash Equivalents in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this Section:.
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or (subject to the conditions set forth in clause (f) below) into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(b) any Subsidiary Guarantor of the Borrower Obligor may sell, lease, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock Capital Stock of any Subsidiary of the Borrower may be sold, transferred (including a deemed transfer resulting from a division or plan of division) or otherwise disposed of (including by way of consolidation or merger) (i) to the Borrower or any 767537780 131 wholly owned Subsidiary Guarantor of the BorrowerBorrower or (ii) so long as such transaction results in an Obligor receiving the proceeds of such disposition, to any other Person, provided, that in the case of this clause (ii), if such Subsidiary is a Subsidiary Guarantor or holds any Portfolio Investments, the Borrower would not have been prohibited from disposing of any such Portfolio Investments to such other Person under any other term of this Agreement;
(d) the Obligors may sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose Dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition Disposition (and any concurrent acquisitions of Investments by the Obligors or payment of outstanding LoansIndebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose Dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition Disposition (and any concurrent acquisitions of Investments by the Obligors or payment of outstanding LoansIndebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release Disposition is not diminished as a result of such release Disposition or (y) the Borrowing Base immediately after giving effect to such release Disposition is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with (or acquire all or substantially all of the assets of) any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect theretothereto (and any concurrent acquisitions of Investments by the Borrower or payment of outstanding Indebtedness that is included in the Covered Debt Amount at such time), no Default shall have occurred or be continuing; andprovided that, in no event shall the Borrower enter in any transaction of merger or consolidation or amalgamation, or effect any internal reorganization, if the surviving entity would be organized under any jurisdiction other than a jurisdiction of the United States;
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer transfers and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year.; and
(h) the Obligors may dissolve or liquidate (i) any Immaterial Subsidiary or (ii) any other Subsidiary so long as (x) in connection with such dissolution or liquidation, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to an Obligor and (y) such dissolution or liquidation is not materially adverse to the Lenders and the Borrower determines in good faith that such dissolution or liquidation is in the best interests of the Borrower. 767537780 132
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (North Haven Private Income Fund a LLC)
Fundamental Changes. The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than a Financing Subsidiary) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than a Financing Subsidiary) to, acquire any business or property from, or capital stock Capital Stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower Company and its Subsidiaries (other than a Financing Subsidiary) and not in violation of the terms and conditions of this Agreement or any other Loan DocumentAgreement. The Borrower Company will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than a Financing Subsidiary) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including, without limitation, Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than including Cash and Cash Equivalents but excluding Portfolio Investments) sold or disposed of in the ordinary course of business of the Company and its Subsidiaries (other than a Financing Subsidiary) (including to make expenditures of cash Cash in the normal course of the day-to-day business activities of the Borrower Company and its SubsidiariesSubsidiaries (other than a Financing Subsidiary)) and (y) subject to the provisions of clauses paragraph (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower Company may be merged or consolidated with or into the Borrower Company or any other Subsidiary Guarantor; Guarantor; provided that if any such transaction shall be between (i) a Subsidiary or a wholly owned Subsidiary Guarantor and the Company, the Company shall be the continuing or surviving entity and (ii) a Subsidiary and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;entity;
(b) any Subsidiary Guarantor of the Borrower Company may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower Company or any wholly owned Subsidiary Guarantor of the Borrower;Company;
(c) the capital stock Capital Stock of any Subsidiary of the Borrower Company may be sold, transferred or otherwise disposed of to the Borrower Company or any wholly owned Subsidiary Guarantor of the Borrower;Company;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) unaffiliated third parties so long as after giving effect to as such sale, transfer or other disposition (and any concurrent acquisitions is permitted by Section 6.03(d) of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed Bank Credit Agreement as in effect on the Borrowing Base;Execution Date;
(e) the Obligors Company and its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments to a Financing Subsidiary in the ordinary course of business so long as (i) after giving effect to the aggregate amount of all such salesales, leases, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount dispositions does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;$5,000,000 in any fiscal year;
(f) the Borrower Company may merge or consolidate with any other Person Person, so long as (i) the Borrower Company is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; andcontinuing; Lafayette Square USA, Inc. Note Purchase Agreement
(g) the Borrower and each any Subsidiary of the Company may be liquidated or dissolved; provided that (i) in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary Guarantors shall be distributed or otherwise transferred to the Company or any wholly-owned Subsidiary Guarantor of the Company and (ii) the Company determines in good faith that such liquidation or dissolution is in the best interest of the Company and is not materially disadvantageous to the holders of the Notes;
(h) the Obligors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments Portfolio Investments, Cash and Cash Equivalents to a Financing Subsidiary so long as the aggregate amount of all such sales, leasessale, transfer and dispositions does not exceed $5,000,000 or disposition is permitted by Section 6.03(h) of the Bank Credit Agreement as in effect on the Execution Date;
(i) any fiscal yearFinancing Subsidiary may sell or dispose of Portfolio Investments in the ordinary course of business of such Financing Subsidiary; and
(j) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments in connection with any Permitted Repurchase Transaction permitted under Section 6.01(e) of the Bank Credit Agreement as in effect on the Execution Date.
Appears in 1 contract
Sources: Note Purchase Agreement (Lafayette Square USA, Inc.)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries or Immaterial Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries or Immaterial Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Portfolio Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) either (x) the Covered Debt Amount does not exceed the Borrowing BaseBase or (y) if the Administrative Agent consents in writing, the amount by which the Covered Debt Amount exceeds the Borrowing Base is reduced thereby;
(e) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Pennantpark Investment Corp)
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal ordinary course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose to Dispose of, in one transaction or a series of related transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed Disposed of in the ordinary course of business (including to make expenditures of cash Cash in the normal ordinary course of the day-to-day business activities of the Borrower and its Subsidiariesbusiness) and (y) subject Portfolio Investments (to the provisions extent not otherwise included in clause (x) of clauses (d) and (e) below, Investmentsthis Section). Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the BorrowerGuarantor;
(c) the capital stock Equity Interests of any Subsidiary of the Borrower Guarantor may be sold, transferred or otherwise disposed Disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the BorrowerGuarantor;
(d) the Obligors Borrower may sell(i) Dispose of any Excluded Investment in connection with an Excluded Investment Financing and (ii) at any time and from time to time in its sole discretion, transfer in connection with an Excluded Investment Financing, designate any individual Portfolio Investment or otherwise dispose any group of Portfolio Investments as excluded investments (other than to a Financing Subsidiaryany such investments, “Excluded Investments”) so long as (1) (x) if immediately prior to such designation a Borrowing Base Deficiency does not exist then, after giving effect to any such saledesignation and the related Excluded Investment Financing (as well as the use of proceeds thereof, transfer or other disposition (and including any concurrent acquisitions acquisition of Portfolio Investments or payment of outstanding Loans), a Borrowing Base Deficiency shall not occur as a result of such designation, or (y) the Covered Debt Amount if immediately prior to such designation a Borrowing Base Deficiency does not exceed the Borrowing Base;
(e) the Obligors may sellexist then, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to any such saledesignation and the related Excluded Investment Financing (as well as the use of proceeds thereof, transfer or other disposition (and including any concurrent acquisitions acquisition of Portfolio Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed ), the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is Deficiency will not diminished be made greater as a result of such release or (y) the Borrowing Base immediately after giving effect designation than it was prior to such release is at least 110% of the Covered Debt Amount;
designation, (f2) the Borrower may merge or consolidate would be in compliance with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.Section
Appears in 1 contract
Sources: Senior Secured Term Loan Agreement
Fundamental Changes. The No Borrower will notshall, nor will shall it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, directly or indirectly, (i) consummate any Acquisition or (ii) enter into any transaction of merger or merger, consolidation or amalgamation, or liquidate, wind wind-up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business ) or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, assign, lease, transfer or otherwise dispose ofof (or agree to do any of the foregoing at any future time) all or substantially all of its property, in one transaction business or a series of assets; provided, however, that so long as prior to or simultaneously with such transactions, any part of such Borrower has complied with, and has caused its assetsSubsidiaries to comply with, whether now owned or hereafter acquired, but excluding (x) assets (other than Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investments. Notwithstanding the foregoing provisions of this SectionSection 7.10:
(a) any Subsidiary Guarantor of the Borrower Company may be merged or consolidated with or into the Borrower Company so long as the Company is the surviving corporation or with or into any one or more Wholly-Owned Subsidiaries of the Company (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that (i) the Wholly-Owned Subsidiary Guarantor; provided that if any such transaction or Subsidiaries shall be the surviving corporation and (ii) in the case of any merger or consolidation between Subsidiaries at least one of which is a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor surviving Person shall be or become a party to the continuing or surviving corporationSubsidiary Guarantee Agreement;
(b) any Subsidiary Guarantor of the a Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the a Borrower or any wholly owned other Wholly-Owned Subsidiary Guarantor of the Borrowera Borrower (other than an Unrestricted Subsidiary);
(c) the capital stock of any Subsidiary of the a Borrower may be soldvoluntarily liquidate, transferred wind-up or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrowerdissolve;
(d) the Obligors any transaction permitted pursuant to Section 8.6(e) may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Basebe consummated;
(e) agreements to conduct the Obligors transactions referred to in clauses (a) through (d) above may sell, transfer or otherwise dispose of Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amountbe entered into;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.
Appears in 1 contract
Fundamental Changes. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will not, nor will it permit any of the Subsidiary Guarantors its Subsidiaries (other than Financing Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsassets (including, without limitation, Cash, Cash Equivalents and Equity Interests), whether now owned or hereafter acquired, but excluding (x) assets (other than Portfolio Investments) sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries (other than the Financing Subsidiaries)) and (y) subject to the provisions of clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio Investments (other than to a Financing SubsidiarySubsidiary or Asset Manager) so long as prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments Portfolio Investments, Cash and Cash Equivalents to a Financing Subsidiary or Asset Manager so long as (i) prior to and after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding LoansLoans or Other Covered Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and no Default exists and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and effect, (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110120% of the Covered Debt Amount;Amount and (iii) in the case of any sale, transfer or other disposition to Fifth Street Funding, LLC, if the Structured Facility Agreements – FSF are outstanding, the Reinvestment Period (as defined in the Structured Loan Agreement - FSF) has not ended, or in the event that the Structured Facility Agreements – FSF have been terminated or replaced, the lender holding liens on the assets of Fifth Street Funding, LLC, if any, has not instituted a process whereby the principal portion of loan assets held by Fifth Street Funding, LLC may not be reinvested or distributed to its equity holder.
(f) the Borrower may merge or consolidate with any other Person Person, so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and;
(g) the Borrower and each of the Subsidiary Guarantors its Subsidiaries may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 10,000,000 in any fiscal year;
(h) any Subsidiary of the Borrower may be liquidated or dissolved, provided that, in connection with such liquidation or dissolution, any and all of the assets of such Subsidiary shall be distributed or otherwise transferred to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower; and
(i) the Borrower may sell or transfer, in one or more transactions, Equity Interests of Fifth Street Funding II, LLC (or Fifth Street Funding II, LLC may issue new Equity Interests) to any Person for a fair value thereof, provided that no Default or Event of Default has occurred and is continuing or would occur as a result of such transfer or issuance.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Fifth Street Finance Corp)
Fundamental Changes. The Borrower No Credit Party will not, nor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Borrower No Credit Party will not, nor will it permit any of the Subsidiary Guarantors to, acquire any business or property from, or capital stock of, or be a party to any acquisition Acquisition of, any PersonPerson except Permitted Acquisitions, except for purchases or acquisitions of Investments inventory and other assets property to be sold or used in the normal ordinary course of the day-to-day business activities of the Borrower business, Investments permitted under Section 7.5 and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan DocumentCapital Expenditures permitted under Section 7.9(e). The Borrower No Credit Party will not, nor will it permit any of the Subsidiary Guarantors to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsbusiness or property, whether now owned or hereafter acquired, including, receivables and leasehold interests, but excluding (x) assets obsolete or worn-out property, tools or equipment no longer used or useful in its business, (y) Dispositions permitted under the terms of this Agreement and (z) any inventory or other than Investments) property sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day and on ordinary business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clauses (d) and (e) below, Investmentsterms). Notwithstanding the foregoing provisions of this SectionSection 7.4:
(a) any Restricted Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary GuarantorRestricted Subsidiary; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary GuarantorWholly Owned Subsidiary, the wholly owned Wholly Owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(b) any Restricted Subsidiary Guarantor of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) to the Borrower any Subsidiary that is a Wholly Owned Subsidiary of CML; provided that Chicago Miniature Lamp-Sylvania I B.V. may sell, lease, transfer or otherwise dispose of any wholly owned or all of its property only to Chicago Miniature Lamp-Sylvania II B.V., its Wholly Owned Subsidiary; provided further that if any such sale is by a Restricted Subsidiary Guarantor to a Subsidiary of CML not a Restricted Subsidiary, then such Subsidiary shall have assumed all of the Borrower;obligations of such Restricted Subsidiary hereunder and under the applicable Collateral Documents and (if not theretofore so pledged) all of the issued and outstanding capital stock of such Subsidiary shall be pledged under the Pledge Agreement executed by the applicable Credit Party and (if not theretofore so encumbered) all the assets of such Subsidiary shall become subject to a Lien in favor of the Administrative Agent pursuant to a Security Agreement and an Intellectual Property Security Agreement; and
(c) the capital stock of any Restricted Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower CML or any wholly owned Subsidiary Guarantor that is a Wholly Owned Subsidiary of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to CML; provided that if any such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer or otherwise dispose of Investments is to a Financing Subsidiary so long as (i) after giving effect to of CML not a Restricted Subsidiary, then such sale, transfer or other disposition (Subsidiary shall have become a Restricted Subsidiary hereunder and any concurrent acquisitions all of Investments or payment of the issued and outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result capital stock of such release or (y) Subsidiary shall be pledged under the Borrowing Base immediately after giving effect to Pledge Agreement executed by the applicable Credit Party and all the assets of such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing; and
(g) the Borrower and each of the Subsidiary Guarantors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $5,000,000 in any fiscal year.shall
Appears in 1 contract
Sources: Credit Agreement (Sli Inc)
Fundamental Changes. The No Borrower will notwill, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The No Borrower will notwill, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, Person except for purchases or acquisitions of Investments inventory and other property (other than assets and related rights constituting an ongoing business) to be sold or used in the normal ordinary course of the day-to-day business activities of the and Investments permitted under Section 6.04. No Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document. The Borrower will notwill, nor will it permit any of the Subsidiary Guarantors its Restricted Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assetsbusiness or property, whether now owned or hereafter acquiredacquired (including receivables and leasehold interests, but excluding (x) assets obsolete or worn-out property or assets, tools or equipment no longer used or useful in its business, (y) any inventory or other than Investments) property sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day and on ordinary business activities of the Borrower and its Subsidiaries) terms and (yz) subject to the provisions of clauses (d) and (e) below, Investmentsany Disposition resulting from a Casualty Event). Notwithstanding the foregoing provisions of this Section, if no Default shall have occurred and be continuing or would result therefrom:
(a) any Restricted Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower GEO or any other Subsidiary GuarantorRestricted Subsidiary; provided that (i) if any such transaction shall be between a Restricted Subsidiary and a Borrower, either such Borrower shall be the continuing or surviving entity, or the continuing or surviving Person (which shall be the successor to GEO by operation of law (which successor shall have been a Domestic Subsidiary immediately prior to such merger or consolidation) or shall be a wholly-owned Domestic Subsidiary of GEO) shall expressly assume, confirm and reaffirm its continuing obligations as a Borrower under the Loan Documents and each Guarantor, unless it is the other party to such merger or consolidation, shall have reaffirmed that its Guarantee of, and grant of any Liens as security for, the Obligations shall apply to such surviving Person’s obligations under this Agreement, in each case pursuant to a confirmation, reaffirmation or other agreements or documentation in form and substance satisfactory to the Administrative Agent and the condition described in Section 4.01(p) shall have been satisfied with respect to such continuing or surviving Person (and if any such transaction shall be between GEO and Corrections, GEO shall be the continuing or surviving entity or, if Corrections is the surviving entity, Corrections shall expressly confirm and reaffirm its continuing obligations as a Borrower under the Loan Documents (including its assumption of all such obligations with respect to all Term Loans and Incremental Term Loans) pursuant to a confirmation, reaffirmation or other agreement or documentation in form and substance satisfactory to the Administrative Agent), and (ii) if any such transaction shall be between a Restricted Subsidiary that is a Guarantor and a wholly owned Restricted Subsidiary that is not a Guarantor, the wholly owned Subsidiary such Guarantor shall be the continuing or surviving corporationentity;
(b) any Restricted Subsidiary Guarantor of formed in connection with (and in contemplation of) a Permitted Acquisition may merge with and into the Borrower Person such Restricted Subsidiary was formed to acquire in connection with such Permitted Acquisition;
(c) any Restricted Subsidiary (other than Corrections) may sell, lease, transfer or otherwise dispose of any or all of its assets property (upon voluntary liquidation or otherwise) to the Borrower GEO or any wholly owned other Restricted Subsidiary; provided that if any such transaction shall be between a Restricted Subsidiary that is a Guarantor and a Restricted Subsidiary that is not a Guarantor, such Guarantor shall be the recipient of the Borrowersuch property;
(cd) the capital stock of any Subsidiary of the Borrower GEO may be sold, transferred or otherwise disposed of to the any Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Investments (other than to a Financing Subsidiary) so long as after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing BaseGuarantor;
(e) GEO or any Restricted Subsidiary may sell to any Governmental Authority for fair market value (as determined by an independent appraisal made by a Person acceptable to the Obligors may sellAdministrative Agent) (or, transfer if less, the net book value when required by such Governmental Authority) any Facility managed or otherwise dispose of Investments operated by GEO or such Restricted Subsidiary pursuant to a Financing Subsidiary Government Contract with such Governmental Authority so long as (i) after giving effect to the aggregate amount of non-cash proceeds from all such sale, transfer or other disposition (and any concurrent acquisitions of Investments or payment of outstanding Loans) the Covered Debt Amount does sales do not exceed the Borrowing Base and the Borrower delivers to the Administrative Agent a certificate of a Financial Officer to such effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount$25,000,000;
(f) GEO or any Restricted Subsidiary may sell or discount without recourse accounts receivable arising in the Borrower ordinary course of business in connection with the compromise or collection thereof in the ordinary course of business, provided that the aggregate face or principal amount of all such accounts receivable sold or discounted after the date hereof may merge not exceed $10,000,000;
(g) GEO or consolidate with any other Person so long as Restricted Subsidiary may sell or otherwise dispose of assets (including to Affiliates, subject to Section 6.06) not otherwise permitted by this Section 6.03; provided that (i) such sale or disposition shall be for cash for fair market value (as determined in good faith by the Borrower board of directors of GEO, provided that, if the board of directors of GEO so determines that the fair market value of such assets is equal to or greater than $50,000,000, then the fair market value shall be determined by an independent appraisal made by a valuation firm or other Person acceptable to the Administrative Agent and such appraisal (and all supporting documentation therefor) shall be delivered to the Administrative Agent (for further distribution to the Lenders) prior to or substantially concurrently with the consummation of such Disposition) and (ii) GEO shall deliver to the Administrative Agent the certification required by the final sentence of Section 2.10(b)(ii) with respect to such Disposition;
(h) GEO or any Restricted Subsidiary may sell any property, business or assets acquired in any acquisition permitted hereunder, including any Permitted Acquisition, to the extent that the same is not related to the construction, design, operation, development or operation of any Facility;
(i) GEO or any Restricted Subsidiary may sell Permitted Investments in the ordinary course of business;
(j) GEO or any Restricted Subsidiary may make Permitted Acquisitions;
(k) any Restricted Subsidiary may be merged or consolidated into any Unrestricted Subsidiary provided that GEO designates the continuing or surviving entity as an Unrestricted Subsidiary in such transaction compliance with Section 5.09(d) hereof;
(l) BII Holding Corporation or any of its Subsidiaries may sell Investments referred to in Section 6.04(n), and (ii) at amounts owing to it or any of them under operating leases, in the ordinary course of business substantially as conducted by it or any of them prior to the time thereof and after giving effect thereto, no Default shall have occurred or be continuingthat BII Holding Corporation became a Subsidiary of GEO; and
(gm) the Borrower and each of the Subsidiary Guarantors (i) GEO may sell, lease, transfer or otherwise dispose of equipment or other any of its property or assets to Corrections or to any Restricted Subsidiary that do not consist of Investments so long as the aggregate amount of all such salesis a Guarantor and (ii) Corrections may sell, leaseslease, transfer and dispositions does not exceed $5,000,000 or otherwise dispose of any of its property or assets to GEO or any Restricted Subsidiary that is a Guarantor. For purposes of this Section 6.03, all determinations of fair market value of any Facility shall include consideration of rights under any Government Contract transferred in any fiscal yearconnection therewith.
Appears in 1 contract
Sources: Credit Agreement (Geo Group Inc)