Restriction on Fundamental Changes. Asset Sales and Primary ----------------------------------------------------------- Acquisitions. ---- Company shall not, and shall not permit any of its Restricted Subsidiaries to, alter the corporate, capital or legal structure of Company or any of its Restricted Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, property or assets, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except: (i) any Restricted Subsidiary of Company may be merged with or into Company or any wholly-owned Subsidiary Guarantor, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary Guarantor; provided that, in the case of such a merger, Company or such -------- wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; (ii) Company and its Restricted Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8; (iii) Company and its Restricted Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business; (iv) Company and its Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided that the -------- consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (v) Company and its Restricted Subsidiaries may make Asset Sales of the Assets Held for Sale or Development; provided that the consideration received -------- for such assets shall be in an amount at least equal to the fair market value thereof; and (vi) Company and its Restricted Subsidiaries may make Asset Sales of (1) the Las Vegas Facility, and (2) other assets having an aggregate fair market value not in excess of $40,000,000; provided that (w) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof; (x) the consideration received for such assets shall be in the form of Cash and/or promissory notes, which notes shall be pledged to Administrative Agent pursuant to the applicable Collateral Documents; (y) with respect to an Asset Sale involving the Las Vegas Facility, the Net Asset Sale Proceeds of such Asset Sale shall be applied as required by subsection 2.4B(iii)(d); and (z) with respect to all other Asset Sales permitted under this subsection 7.7(vi), the Net Asset Sale Proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a). 7.8
Appears in 1 contract
Restriction on Fundamental Changes. Asset Sales and Primary ----------------------------------------------------------- Acquisitions. ---- Company Parent shall not, and shall not permit any of its Restricted Subsidiaries to, alter the corporate, capital or legal structure of Company Parent or any of its Restricted Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, property or assets, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except: :
(i) Borrower may be merged into Parent and any Restricted Subsidiary of Company Borrower may be merged with or into Company or any wholly-owned Subsidiary Guarantor, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary Guarantor; provided that, in the case of such a merger, Company or such -------- wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; ;
(ii) Company Borrower and its Restricted Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8; ;
(iii) Company Borrower and its Restricted Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business; ;
(iv) Company Borrower and its Restricted Subsidiaries may sell or otherwise dispose of assets for cash in transactions that do not constitute Asset Sales; provided that the -------- consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(v) subject to subsection 7.11 Borrower and its Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $2,000,000; provided that (x) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (vy) Company and its Restricted Subsidiaries may make Asset Sales of the Assets Held for Sale or Development; provided that the sole consideration received -------- for such assets shall be in an amount at least equal to the fair market value thereof; and (vi) Company and its Restricted Subsidiaries may make Asset Sales of (1) the Las Vegas Facility, and (2) other assets having an aggregate fair market value not in excess of $40,000,000; provided that (w) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof; (x) the consideration received for such assets shall be in the form of Cash and/or promissory notes, which notes shall be pledged to Administrative Agent pursuant to the applicable Collateral Documents; (y) with respect to an Asset Sale involving the Las Vegas Facility, the Net Asset Sale Proceeds of such Asset Sale shall be applied as required by subsection 2.4B(iii)(d)cash; and (z) with respect to all other Asset Sales permitted under this subsection 7.7(vi), the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a). 7.8;
(vi) Borrower and its Subsidiaries may consummate the Acquisition and the Restructuring; and
(vii) Borrower and its Subsidiaries may make acquisitions in an aggregate amount not to exceed (x) $10,000,000 if the aggregate principal amount of Term Loans outstanding equals or exceeds $15,000,000, (y) $25,000,000 in the aggregate if the aggregate principal amount of Term Loans outstanding equals or exceeds $5,000,000 but is less than $15,000,000 and (z) $35,000,000 in the aggregate if the aggregate principal amount of Term Loans outstanding is, less than $5,000,000; provided that with respect to acquisitions made pursuant to this subsection 7.7(vii): (i) any newly acquired or created Subsidiary of Borrower or any of its Subsidiaries shall be a wholly owned Subsidiary thereof; (ii) immediately before and after giving effect thereto, no Potential Event of Default or Event of Default shall have occurred and be continuing or would result therefrom; (iii) any business acquired or invested in pursuant to this subsection 7.7(vii) shall be in the same line of business as the business of Borrower or any of its Subsidiaries; and
Appears in 1 contract
Sources: Credit Agreement (CFP Holdings Inc)
Restriction on Fundamental Changes. Asset Sales and Primary ----------------------------------------------------------- Acquisitions. ---- Company shall notSubject to subsection 5.2, and shall not permit any of its Restricted Subsidiaries to, alter the corporate, capital or legal structure each of Company or any of and its Restricted Subsidiaries, or Subsidiaries will not enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor)lease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, property or fixed assets, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except: :
(i) any Restricted Subsidiary of Company may be merged or consolidated with or into Company or any wholly-owned Subsidiary Guarantorof Company, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary Guarantorof Company; provided that, in the case of such a mergermerger or consolidation involving Company, Company or such -------- wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; ;
(ii) Company and its Restricted Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8; convey, sell, lease or otherwise dispose of in the ordinary course of business any property or asset which is obsolete or no longer useful in any of its businesses or is of de minimis value, as determined in good faith by the Board of Directors of Company or such Subsidiary, as the case may be;
(iii) so long as no Event of Default has occurred and is continuing or shall be caused thereby, Company and its Subsidiaries may convey, sell, lease or otherwise dispose of any of their assets outside the ordinary course of business; provided that (a) any such sale or other disposition is made for at least the fair market value of such assets; and (b) Company and its Restricted Subsidiaries may not sell or otherwise dispose of, in any one or more Asset Sales consummated after the date hereof, an amount equal to or greater than an aggregate of (i) $300,000,000 in fair market value of stock or other assets pursuant to this subsection 6.6(iii) during any consecutive 12-month period or (ii) $600,000,000 in fair market value of stock or other assets pursuant to this subsection 6.6(iii) during the term of this Agreement;
(iv) Company and its Subsidiaries may sell, resell or otherwise dispose of obsolete, worn out real or surplus personal property held for sale or resale in the ordinary course of business; (iv) Company and its Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided that the -------- consideration received for such assets shall be in an amount at least equal to the fair market value thereof; and
(v) Company and its Restricted Subsidiaries may make Asset Sales of the Assets Held for Sale or Development; provided that the consideration received -------- sell accounts receivable pursuant to accounts receivable securitization facilities on customary terms for such assets shall be in an amount at least equal facilities (including customary terms as to the fair market value thereof; and (vi) non- recourse nature of such facilities to Company and its Restricted Subsidiaries may make Asset Sales of (1) the Las Vegas Facility, and (2) other assets having an aggregate fair market value not in excess of $40,000,000; provided that (w) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof; (x) the consideration received for such assets shall be in the form of Cash and/or promissory notes, which notes shall be pledged to Administrative Agent pursuant to the applicable Collateral Documents; (y) with respect to an Asset Sale involving the Las Vegas Facility, the Net Asset Sale Proceeds defaults by account debtors in payment of such Asset Sale shall be applied as required by subsection 2.4B(iii)(dany accounts receivable sold pursuant thereto); and (z) with respect to all other Asset Sales permitted under this subsection 7.7(vi), the Net Asset Sale Proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a). 7.8.
Appears in 1 contract
Restriction on Fundamental Changes. Asset Sales and Primary ----------------------------------------------------------- Acquisitions. ---- (a) Prior to the Conversion Date, the Company shall not, and nor shall not it cause or permit any of its Restricted Subsidiaries to, alter the corporate, capital or legal structure of Company or any of its Restricted Subsidiaries, or Subsidiary Guarantors to (i) enter into any transaction of merger or consolidationtransaction, or series of related transactions, of merger, amalgamation, consolidation or combination, (ii) consolidate, liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), (iii) directly or indirectly convey, sell, lease or sub-lease (as lessor or sublessor)lease, sublease, transfer or otherwise dispose of, in one transaction or in a series of transactions, in the case of this clause (iii), all or any part substantially all of its business, property or assets, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or (iv) consummate any acquisition of any capital stock or other evidence of beneficial ownership of, any Person or any division or line of business assets of any Person, except: :
(i) in connection with the Recapitalization;
(ii) the Company or any Restricted Subsidiary Guarantor may merge with an Affiliate incorporated solely for the purposes of reincorporating the Company or such Subsidiary Guarantor in another jurisdiction;
(iii) any Subsidiary Guarantor may be merged merged, amalgamated, consolidated or combined with or into the Company or any wholly-owned Subsidiary Guarantor, Guarantor or be liquidated, wound up or dissolved, or all or any part substantially all of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or in a series of transactions, to the Company or to any wholly-owned Subsidiary Guarantor; provided thatPROVIDED, HOWEVER, that (A) no Potential Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) in the case of such a merger, amalgamation, consolidation or combination of the Company or such -------- wholly-owned and a Subsidiary Guarantor Guarantor, the Company shall be the continuing or surviving corporation, and (C) the surviving entity (I) continues to be bound as such under this Agreement or the Guarantee of such Subsidiary Guarantor, as the case may be, and (II) executes and delivers to the Agents immediately upon consummation of such transaction a written confirmation or acknowledgment to such effect, in form and substance satisfactory to -102- the Agents, together with evidence of appropriate corporate power, authority and action and a written legal opinion in form and substance satisfactory to the Agents to the effect that this Agreement and such Guarantee continue to be a legal, valid and binding obligation of such entity, enforceable against such entity in accordance with its terms (subject to customary exceptions in respect of bankruptcy, insolvency and other equitable remedies), and with respect to such other matters as the Agents may reasonably request; (ii) Company and its Restricted Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8; (iii) Company and its Restricted Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business; and
(iv) the Company or any Restricted Subsidiary may acquire the capital stock or assets of any Person either through merger or acquisition of capital stock or assets so long as the total consideration for such acquisition pursuant to this Section 6.6(a)(iv) shall not exceed $10.0 million and its Restricted Subsidiaries may sell the total consideration for all of such acquisitions pursuant to this Section 6.6(a)(iv) shall not exceed $30.0 million in the aggregate.
(b) After the Conversion Date, neither the Company nor any Subsidiary Guarantor will consolidate or merge with or into, or sell, lease, convey or otherwise dispose of all or substantially all of its assets (including, without limitation, by way of liquidation or dissolution) or assign any of its obligations hereunder, under the Notes or under the Guarantees (as an entirety or substantially in transactions that do not constitute Asset Sales; provided that the -------- consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (vone transaction or a series of related transactions) Company and to, any Person or permit any of its Restricted Subsidiaries may make Asset Sales to do any of the Assets Held for Sale foregoing (in each case other than with the Company or Development; provided that another Subsidiary Guarantor) unless: (i) the consideration received -------- for Person formed by or surviving such assets shall consolidation or merger (if other than the Company or such Subsidiary Guarantor, as the case may be), or to which such sale, lease, conveyance or other disposition or assignment will be made (collectively, the "Successor"), is a solvent corporation or other legal entity organized and existing under the laws of the United States or any state thereof or the District of Columbia, and the Successor assumes by supplemental agreement in an amount a form reasonably satisfactory to the Agents all of the obligations of the Company or such Subsidiary Guarantor, as the case may be, under the Notes or such Subsidiary Guarantor's Guarantee, as the case may be, and this Agreement, (ii) immediately after giving effect to such transaction, no Potential Event of Default or Event of Default has occurred and is continuing and (iii) immediately after giving effect to such transaction and the use of any net proceeds therefrom, on a PRO FORMA basis, the Company or the Successor (in the case of a transaction involving the Company), as the case may be, would be entitled to Incur at least equal $1.00 of additional Indebtedness under the Consolidated Fixed Charge Coverage Ratio test set forth in clause (xxi) of Section 6.1 hereof. The foregoing provisions shall not apply to a transaction involving the consolidation or merger of a Subsidiary Guarantor with or into another Person, or the sale, lease, conveyance or other disposition of all or substantially all of the assets of such Subsidiary Guarantor, that results in such Subsidiary Guarantor being released from its Subsidiary Guarantee as provided under Section 10.6 hereof.
(c) Upon any consolidation or merger, or any sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company or any assignment of its obligations under this Agreement in accordance with Section 6.6(b) hereof, upon assumption by the successor corporation, by supplemental agreement, executed and delivered to the fair market value thereof; Agents and (vi) Company satisfactory in form to the Agents, of the due and its Restricted Subsidiaries may make Asset Sales punctual payment of (1) the Las Vegas Facilityprincipal of, premium, if any, and (2) interest on all of the Notes and the due and punctual performance and observance of all the covenants and conditions of this Agreement to be performed or observed by the Company, the Successor formed by such consolidation or into or with which the Company is merged or to which such sale, lease, conveyance or other assets having an aggregate fair market value not disposition or assignment is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under this Agreement with the same effect as if such Successor has been named as the Company herein and such Successor may cause to be signed and may issue in excess of $40,000,000; provided that (w) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof; (x) the consideration received for such assets shall be its own name or in the form name of Cash and/or promissory notesthe Company, which notes shall any or all Notes issuable hereunder and the predecessor Company in the case of a sale, lease, conveyance or other disposition or assignment, will be pledged to Administrative Agent pursuant to released from all obligations under the applicable Collateral Loan Documents; (y) with respect to an Asset Sale involving the Las Vegas Facility, the Net Asset Sale Proceeds of such Asset Sale shall be applied as required by subsection 2.4B(iii)(d); and (z) with respect to all other Asset Sales permitted under this subsection 7.7(vi), the Net Asset Sale Proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a). 7.8.
Appears in 1 contract
Restriction on Fundamental Changes. Asset Sales and Primary ----------------------------------------------------------- AcquisitionsASSET SALES AND ACQUISITIONS. ---- Company shall notExcept as permitted pursuant to subsection 7.11, no Loan Party shall, and no Loan Party shall not permit any of its Restricted Subsidiaries to, alter the corporate, capital or legal structure of Company such Loan Party or any of its Restricted Subsidiariessuch Subsidiary, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or 107 116 any part of its business, property or assetsassets (other than inventory sold in the ordinary course of business), whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except: :
(i) any Restricted Subsidiary of Company Loan Party (other than a Loan Party which has become liable for Indebtedness permitted under subsection 7.1(v)) may be merged with or into Company Borrower or any wholly-owned Wholly Owned Subsidiary Guarantor, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company Borrower or any wholly-owned Wholly Owned Subsidiary Guarantor; provided that, in the case of such a merger, Company Borrower or such -------- wholly-owned Wholly Owned Subsidiary Guarantor shall be the continuing or surviving corporation; ;
(ii) Company and its Restricted Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8; (iii) Company and its Restricted Subsidiaries the Loan Parties may dispose of obsolete, worn out or surplus property in the ordinary course of business; business provided that the aggregate amount of proceeds received from such sales shall not exceed $1,000,000 during the term of this Agreement;
(iviii) Company and its Restricted Subsidiaries the Loan Parties may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided that (a) the -------- consideration received for such assets shall be in an amount at least equal to the fair market value thereof; thereof as determined by such Loan Party in good faith, (vb) Company the aggregate amount of proceeds received from such sales shall not exceed $1,000,000 during the term of this Agreement and its Restricted Subsidiaries (c) the total consideration received by such Loan Party in each such sale consists of at least 90% Cash received at the closing of such sale;
(iv) the Loan Parties may make Asset Sales of the Assets Held for Sale or Development; provided that the consideration received -------- for such assets shall be in an amount at least equal to the fair market value thereof; and (vi) Company and its Restricted Subsidiaries may make Asset Sales of (1) the Las Vegas Facility, and (2) other assets having an aggregate fair market value not in excess of $40,000,000; provided that (w) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof; (x) the consideration received for such assets shall be in the form of Cash and/or promissory notes, from which notes shall be pledged to Administrative Agent pursuant to the applicable Collateral Documents; (y) with respect to an Asset Sale involving the Las Vegas Facility, the Net Asset Sale Proceeds received do not exceed an aggregate cumulative amount equal to $1,800,000;
(v) Intentionally Omitted;
(vi) the Loan Parties may discount or otherwise transfer defaulted receivables in connection with the collection thereof in the ordinary course of such Asset Sale shall be applied as required by subsection 2.4B(iii)(d); and (z) with respect to all other Asset Sales permitted under this subsection 7.7(vi), the Net Asset Sale Proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a). 7.8business.
Appears in 1 contract
Restriction on Fundamental Changes. Asset Sales and Primary ----------------------------------------------------------- Acquisitions. ---- ---------------------------------------------------------------- Company shall not, and shall not permit any of its Restricted Subsidiaries to, alter the corporate, capital or legal structure of Company or any of its Restricted Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, property or assets, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or 102 substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except: ;
(i) any Restricted Subsidiary of Company may be merged with or into Company or any wholly-owned Subsidiary Guarantor, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary Guarantor; provided that, in the case of such a merger, Company -------- or such -------- wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; ;
(ii) Trusts or Holdings may be merged with or into Company, or be liquidated, wound up or dissolved, or all or part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions to Company; provided -------- that in the case of such a merger, Company shall be the continuing or surviving corporation;
(iii) Company and its Restricted Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8; ;
(iiiiv) Company and its Restricted Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business; ;
(ivv) Company and its Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided that -------- the -------- consideration received for such assets shall be in an amount at least equal to the fair market value thereof; and
(vvi) subject to subsection 7.12, Company and its Restricted Subsidiaries may make Asset Sales of the Assets Held for Sale or Development; provided that the consideration received -------- for such assets shall be in an amount at least equal to the fair market value thereof; and (vi) Company and its Restricted Subsidiaries may make Asset Sales of (1) the Las Vegas Facility, and (2) other assets having an aggregate a fair market value not in excess of $40,000,000100,000; provided that (wx) the consideration received for -------- such assets -------- shall be in an amount at least equal to the fair market value thereof; (xy) the sole consideration received for such assets shall be in the form of Cash and/or promissory notes, which notes shall be pledged to Administrative Agent pursuant to the applicable Collateral Documents; (y) with respect to an Asset Sale involving the Las Vegas Facility, the Net Asset Sale Proceeds of such Asset Sale shall be applied as required by subsection 2.4B(iii)(d)cash; and (z) with respect to all other Asset Sales permitted under this subsection 7.7(vi), the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a). 7.8, and
(vii) Company and its Subsidiaries may make Investments in accordance with subsection 7.3.
Appears in 1 contract
Sources: Credit Agreement (Digitas Inc)
Restriction on Fundamental Changes. Asset Sales and Primary ----------------------------------------------------------- Acquisitions. ---- A. Other than as permitted by subsection 6.7B, neither Holding, Company shall notnor any Subsidiary may, and shall not permit without the consent of Requisite Lenders, acquire or create any Subsidiaries or convey, sell, lease, sublease or transfer any of its Restricted Subsidiaries to, alter the corporate, capital or legal structure of Company or assets to any of its Restricted Subsidiaries.
B. Neither Holding, or Company nor any Subsidiary will enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or exchange, lease, sub-lease (as lessor or sublessor)lease, transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any substantial part of its business, property or assetsfixed assets or all or any portion of the stock or other evidence of beneficial ownership of, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except: :
(i) any Restricted Subsidiary of Company Holding may be merged or consolidated with or into Company or any wholly-owned Subsidiary Guarantor, or be liquidated, wound up or dissolvedCompany, or all or any part substantially all of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company and Holding thereafter may be liquidated, wound up or any wholly-owned Subsidiary Guarantordissolved; provided PROVIDED that, in the case of such a mergermerger or consolidation, Company or such -------- wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; (ii) Company and its Restricted Subsidiaries or a Subsidiary thereof may make Consolidated Capital Expenditures permitted under subsection 7.8; (iii) Company and its Restricted Subsidiaries may dispose of obsoletesell, worn out or surplus property in the ordinary course of business; (iv) Company and its Restricted Subsidiaries may sell lease, license, exchange or otherwise dispose of assets or rights in Asset Sale transactions for cash or Cash Equivalent consideration only so long as the Net Cash Proceeds thereof are applied as provided in subsection 2.4(A)(ii); PROVIDED that do not constitute (A) any Asset Sales; provided that the -------- consideration received Sale is made for such assets shall be in an amount at least equal to the fair market value thereof; of such assets (vas determined in good faith by Company or such Subsidiary), (B) the aggregate Net Cash Proceeds of Asset Sale transactions since July 31, 1997, with respect to assets located in the United Kingdom shall not exceed 10% of the Pounds Sterling equivalent of the net book value, determined as of July 31, 1997, of all assets of Company and its Restricted Subsidiaries may make located in the United Kingdom on July 31, 1997, (C) the aggregate Net Cash Proceeds of Asset Sales transactions since July 31, 1997, with respect to assets located in Switzerland shall not exceed 10% of the Assets Held for Sale or Development; provided that Swiss Franc equivalent of the consideration received -------- for such net book value, determined as of July 31, 1997, of all assets shall be in an amount at least equal to the fair market value thereof; and (vi) of Company and its Restricted Subsidiaries may make located in Switzerland on July 31, 1997, (D) the aggregate Net Cash Proceeds of Asset Sales of (1) the Las Vegas Facilitytransactions since July 31, and (2) other assets having an aggregate fair market value not in excess of $40,000,000; provided that (w) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof; (x) the consideration received for such assets shall be in the form of Cash and/or promissory notes1997, which notes shall be pledged to Administrative Agent pursuant to the applicable Collateral Documents; (y) with respect to an assets located in Germany shall not exceed 10% of the German ▇▇▇▇ equivalent of the net book value, determined as of July 31, 1997, of all assets of Company and its Subsidiaries located in Germany on July 31, 1997, (E) Asset Sale transactions involving assets located in the Las Vegas Facility, United States may be made so long as the aggregate Net Asset Sale Cash Proceeds of such Asset Sale transactions since July 31, 1997, shall not exceed $20,000,000, (F) subject to subsection 2.4A(ii) no sale of the shares of MIT and no Asset Sale shall be applied as required made with respect to MIT unless consented to by subsection 2.4B(iii)(d); all Lenders, and (zG) with respect to all other Asset Sale transactions not otherwise referred to in clauses (B), (C), (D), (E) or (F) above or not otherwise expressly permitted by this subsection 6.7B, Company receives the prior written consent of Requisite Lenders for any such Asset Sale or series of related Asset Sales permitted under this subsection 7.7(vi)involving the fair market value of assets (as determined in good faith by Company or such Subsidiary) or sales price in excess of $250,000; PROVIDED, FURTHER, that the Net restrictions on Asset Sale Proceeds transactions set forth in the foregoing PROVISO shall not apply to any Asset Sale transactions involving (1) the Proposed Closed Facilities, (2) any Discontinued Operations or (3) any capital stock or treasury stock of such Asset Sales shall Holding, or any rights, options or warrants to acquire same; PROVIDED, HOWEVER in no event may any stock of any Subsidiary that is not a Discontinued Operation be applied as required by subsection 2.4B(iii)(a). 7.8sold;
Appears in 1 contract
Restriction on Fundamental Changes. Asset Sales and Primary ----------------------------------------------------------- AcquisitionsRecapitalizations. ---- Company --------------------------------------------------------------------- Holdings shall not, and shall not permit any of its Restricted Subsidiaries to, alter the corporate, capital or legal structure of Company Holdings or any of its Restricted Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, property or assets, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except: :
(i) any Restricted Subsidiary of Company may be merged with or into Company or any wholly-wholly owned Subsidiary Guarantor, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-wholly owned Subsidiary Guarantor; provided that, in the case of such a merger involving -------- Company, Company shall be the continuing or surviving corporation, and in the case of any other such merger, Company or such -------- wholly-wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation; ;
(ii) any Foreign Subsidiary of Company may be merged with or into any wholly owned Foreign Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any wholly owned Foreign Subsidiary; provided -------- that (i) in the case of such a merger, such wholly owned Foreign Subsidiary shall be the continuing or surviving corporation and (ii) in each case, the stock of such wholly owned Foreign Subsidiary is pledged pursuant to, and to the extent required under, the Collateral Documents; 135
(iii) Company and its Restricted Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8; ;
(iiiiv) Company and its Restricted Subsidiaries may dispose of obsolete, uneconomical, negligible, worn out or surplus property (including Intellectual Property) in the ordinary course of business; ;
(ivv) Company and its Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided that -------- the -------- consideration received for such assets shall be in an amount at least equal to the fair market value thereof; ;
(vvi) subject to subsection 7.12, Company and its Restricted Subsidiaries may make Asset Sales of the Assets Held for Sale or Development; provided that the consideration received -------- for such assets shall be in an amount at least equal to the fair market value thereof; and (vi) Company and its Restricted Subsidiaries may make Asset Sales of (1) the Las Vegas Facility, and (2) other assets having an aggregate a fair market value not in excess of $40,000,00020,000,000; provided that (wx) the consideration received for -------- such assets -------- shall be in an amount at least equal to the fair market value thereof; (xy) not less than 80% of the consideration received for such assets shall be in the form of Cash and/or promissory notes, which notes shall be pledged to Administrative Agent pursuant to the applicable Collateral Documents; (y) with respect to an Asset Sale involving the Las Vegas Facility, the Net Asset Sale Proceeds of such Asset Sale shall be applied as required by subsection 2.4B(iii)(d)cash; and (z) with respect to all other Asset Sales permitted under this subsection 7.7(vi), the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a). 7.8;
(vii) Company and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof; provided that the aggregate amount of such accounts receivable sold -------- pursuant to this clause (vii) shall not exceed in any Fiscal Year 10% of the accounts receivable of Company and its Subsidiaries recorded for the preceding Fiscal Year;
(viii) Company and its Subsidiaries may sell or exchange specific items of equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(ix) Company and its Subsidiaries may, in the ordinary course of business, license as licensee or licensor patents, trademarks, copyrights and know-how to or from third Persons, so long as any such license by Company or any of its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Collateral Documents (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Company or any of its Subsidiaries pursuant to the Collateral Documents in the Intellectual Property covered by such license;
(x) Company and its Subsidiaries may sell or otherwise transfer inventory to their respective Subsidiaries for resale by such Subsidiaries, and Subsidiaries of Company may sell or otherwise transfer inventory to Company for resale by Company so long as the security interest granted to the Collateral Agent pursuant to the Collateral Documents in the inventory so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xi) Company may contribute cash to one or more wholly owned Domestic Subsidiaries formed after the Closing Date, so long as the aggregate amount of such cash so contributed to each such Domestic Subsidiary does not exceed $1,000,000;
(xii) Company and its Domestic Subsidiaries may transfer assets (other than inventory) to wholly owned Foreign Subsidiaries so long as (x) the aggregate fair market value of all such assets (other than intellectual property) so transferred (determined in good faith by the Board of Directors or senior management of Company) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $2,000,000 and (y) the aggregate fair market value of all Intellectual Property so transferred (determined in good faith by the Board of Directors or senior management of Company) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $1,000,000;
(xiii) any Domestic Subsidiary of Company may transfer assets (other than accounts receivable and inventory) to Company or to any other wholly owned Domestic Subsidiary of Company so long as the security interests granted to Collateral Agent of Lenders pursuant to the Collateral Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer); and
(a) immediately prior to and after giving effect to any such acquisition, Company and its Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof;
(b) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of Company or (B) such Person is merged with and into Company or a wholly owned Subsidiary of Company (with Company or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person;
(c) the only consideration paid in connection with such Permitted Acquisition shall consist of cash, Holdings Common Stock or Permitted Seller Notes;
(1) Company shall be in compliance, on a pro forma basis giving effect to the proposed acquisition, with the covenants set forth in subsection 7.6 hereof, (2) the ratio (calculated on a pro forma basis giving effect to the proposed 137 acquisition) of (x) the principal amount of any Revolving Loans borrowed to finance such acquisition to (y) the New Business EBITDA of the acquired business shall not exceed 3.5 to 1.0, (3) the ratio (calculated on a pro forma basis giving effect to the proposed acquisition) of (x) the principal amount of all Indebtedness incurred by Holdings and its Subsidiaries to finance such acquisition plus all ---- Indebtedness of such New Business existing at the time of such acquisition for which Holdings or any of its Subsidiaries shall be liable immediately following such acquisition, to (y) the New Business EBITDA of the acquired business shall not exceed 5.5 to 1.0, and (4) no Event of Default or Potential Event of Default shall have occurred and be continuing at the time of such acquisition or shall be caused thereby; and Company shall have delivered to Administrative Agent an Officer's Certificate (together with supporting information therefor), in form and substance reasonably satisfactory to Administrative Agent, certifying as to the foregoing; and
(e) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents;
(xv) Holdings and its Subsidiaries may consummate the Recapitalization Transactions:
(xvi) Holdings may issue Holdings Common Stock to the extent otherwise not prohibited under the provisions hereof.
Appears in 1 contract
Sources: Credit Agreement (Sealy Corp)
Restriction on Fundamental Changes. Asset Sales and Primary ----------------------------------------------------------- Acquisitions--------------------------------------------------- Recapitalizations. ---- Company ----------------- Holdings shall not, and shall not permit any of its Restricted Subsidiaries to, alter the corporate, capital or legal structure of Company Holdings or any of its Restricted Subsidiaries, or issue any capital stock or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, property or assets, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except: :
(i) any Restricted Subsidiary of Company a Borrower may be merged with or into Company any Borrower or any wholly-wholly owned Subsidiary Guarantor, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company any Borrower or any wholly-wholly owned Subsidiary Guarantor; provided that, in the case of such a merger -------- involving Company, Company shall be the continuing or surviving corporation, in the case of such a merger involving Subsidiary Borrower (other than a merger of Company and Subsidiary Borrower), Subsidiary Borrower shall be the continuing or surviving corporation, and in the case of any other such merger, Company or such -------- wholly-wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation; ;
(ii) any Foreign Subsidiary of Company may be merged with or into any wholly owned Foreign Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any wholly owned Foreign Subsidiary; provided that (i) in the case of such a merger, such wholly -------- owned Foreign Subsidiary shall be the continuing or surviving corporation and its Restricted (ii) in each case, the stock of such wholly owned Foreign Subsidiary is pledged pursuant to, and to the extent required under, the Collateral Documents;
(iii) Borrowers and their respective Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8; ;
(iiiiv) Company Borrowers and its Restricted their respective Subsidiaries may dispose of obsolete, uneconomical, negligible, worn out or surplus property (including Intellectual Property) in the ordinary course of business; ;
(ivv) Company Borrowers and its Restricted their respective Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset SalesSales (including, without limitation, inventory and other assets acquired for resale to franchisees in the ordinary course of business); provided -------- that the -------- consideration received for such assets shall be in an amount at least equal to the fair market value thereof; ;
(vvi) Company subject to subsection 7.12, Borrowers and its Restricted their respective Subsidiaries may make Asset Sales of the Assets Held for Sale or Development; provided that the consideration received -------- for such assets shall be in an amount at least equal to the fair market value thereof; and (vi) Company and its Restricted Subsidiaries may make Asset Sales of (1) the Las Vegas Facility, and (2) other assets having an aggregate a fair market value not in excess of $40,000,000; provided that (wx) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof; (x) the consideration received for such assets shall be in the form of Cash and/or promissory notes, which notes shall be pledged to Administrative Agent pursuant to the applicable Collateral Documents; thereof and (y) with respect to an Asset Sale involving the Las Vegas Facility, the Net Asset Sale Proceeds of such Asset Sale shall be applied as required by subsection 2.4B(iii)(d); and (z) with respect to all other Asset Sales permitted under this subsection 7.7(vi), the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a). 7.8;
(vii) Borrowers and their respective Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(viii) Borrowers and their respective Subsidiaries may sell or exchange specific items of equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(ix) Borrowers and their respective Subsidiaries may, in the ordinary course of business, license as licensee or licensor patents, trademarks, copyrights and know-how to or from third Persons, so long as any such license by a Borrower or any of its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Collateral Documents (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by such Borrower or any of its Subsidiaries pursuant to the Collateral Documents in the Intellectual Property covered by such license;
(x) Borrowers and their respective Subsidiaries may sell or otherwise transfer inventory to their respective Subsidiaries for resale by such Subsidiaries, and Subsidiaries of Borrowers may sell or otherwise transfer inventory to any Borrower for resale by such Borrower so long as the security interest granted to the Collateral Agent pursuant to the Collateral Documents in the inventory so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xi) Borrowers may contribute cash to one or more wholly owned Domestic Subsidiaries that is a Subsidiary Guarantor;
(xii) Borrowers and their respective Domestic Subsidiaries may transfer assets (other than inventory) to wholly owned Foreign Subsidiaries so long as (x) the aggregate fair market value of all such assets (other than Intellectual Property) so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $5,000,000 and (y) the aggregate fair market value of all Intellectual Property so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $2,500,000;
(xiii) Company and any Domestic Subsidiary of Company may transfer assets to Company, Subsidiary Borrower or any other wholly owned Domestic Subsidiary of Company that is a Subsidiary Guarantor, so long as the security interests granted to Collateral Agent of Lenders pursuant to the Collateral Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xiv) Holdings and its Subsidiaries may consummate the Recapitalization Transactions;
(xv) Holdings may issue (x) Holdings Common Stock and (y) Qualified Preferred Stock, so long as, with respect to each issuance thereof, Holdings receives equivalent consideration therefor (as determined in good faith by Holdings);
(xvi) either Borrower or any wholly-owned Subsidiary of a Borrower may make
(a) immediately prior to and after giving effect to any such acquisition, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof;
(b) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person;
(c) the only consideration paid in connection with such Permitted Acquisition shall consist of cash, Holdings Common Stock, Qualified Preferred Stock or Permitted Seller Notes;
(1) Holdings shall be in compliance, on a pro forma basis ---------- giving effect to the proposed acquisition, with the covenants set forth in subsection 7.6 hereof, (2) if at the time of the consummation of the proposed acquisition, the Leverage Ratio for the Test Period then most recently ended prior to the consummation of such proposed acquisition (calculated without giving effect to such proposed acquisition) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Pre-Acquisition Leverage Ratio") is less than or equal to 5.75:1.00, then such Pre- Acquisition Leverage Ratio shall be equal to or greater than the Leverage Ratio for the Test Period then most recently ended (calculated on a pro forma basis after giving effect to the proposed acquisition as provided in subsection 7.6D) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Post- Acquisition Leverage Ratio"), (3) if at the time of the consummation of the proposed acquisition, (x) the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition is greater than 5.75:1.00 or (y) the Post-Acquisition Leverage Ratio calculated with respect to such proposed acquisition exceeds the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition (any such acquisition consummated or to be consummated in reliance on this clause (3) (other than an Insignificant Permitted Acquisition), a "Restricted Permitted Acquisition"), then the Permitted Acquisition Cost of such proposed acquisition (other than an Insignificant Permitted Acquisition) , when aggregated with the Permitted Acquisition Costs of all other Restricted Permitted Acquisitions consummated after the Closing Date and prior to the consummation of such proposed acquisition, shall not exceed $35,000,000 and (4) no Event of Default or Potential Event of Default shall have occurred and be continuing at the time of such acquisition or shall be caused thereby; and Holdings shall have delivered to Administrative Agent an Officer's Certificate (together with supporting information therefor), in form and substance reasonably satisfactory to Administrative Agent, certifying as to the foregoing; provided that, notwithstanding the foregoing, in the event -------- that the Permitted Acquisition Cost of the proposed acquisition is less than or equal to $1,000,000 (each, an "Insignificant Permitted Acquisition"), the provisions of subclauses (2) and (3) of, and the requirement to provide an Officer's Certificate pursuant to, this clause (d) shall not be applicable; and
(e) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents; and
(xvii) so long as no Event of Default is then in existence, Company may issue Permitted Company Cumulative Preferred Stock to holders of Cumulative Preferred Stock in exchange for shares of such holders' Cumulative Preferred Stock as contemplated by the definition of Permitted Company Cumulative Preferred Stock;
(xviii) Borrowers and their respective Subsidiaries may acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, so long as (v) immediately prior to the making of each such acquisition, the Excess Proceeds Amount exceeds the cash amount expended as consideration in connection with such acquisition, (w) no Event of Default or Potential Event of Default shall have occurred and be continuing at the time of such acquisition or shall be caused thereby, (x) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents, (y) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person and (z) immediately prior to and after giving effect to any such acquisition, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof; and
(xix) Borrowers and their respective Subsidiaries may issue capital stock to the extent permitted by subsection 7.12(ii).
Appears in 1 contract
Sources: Credit Agreement (Dominos Pizza Government Services Division Inc)
Restriction on Fundamental Changes. Asset Sales and Primary ----------------------------------------------------------- Acquisitions. ---- Company shall not, and shall not permit any of its Restricted Subsidiaries to, alter the corporate, capital or legal structure of Company or any of its Restricted Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, property or assets, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except: :
(i) any Restricted Subsidiary of Company may be merged with or into Company or any direct or indirect wholly-owned Subsidiary Guarantor, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, 115 sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any direct or indirect wholly-owned Subsidiary Guarantor; provided that, in the case of such a merger, Company or such -------- direct or indirect wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; ;
(ii) Company and its Restricted Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8; ;
(iii) Company and its Restricted Subsidiaries may dispose of obsolete, obsolete or worn out or surplus property in the ordinary course of business; ;
(iv) Company and its Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales;
(v) subject to subsection 7.11, Company and its Subsidiaries may make annual Asset Sales of assets having a fair market value not in excess of 5% of the consolidated revenues of Company and its Subsidiaries for the immediately preceding Fiscal Year as shown on the consolidated financial statements of Company and its Subsidiaries for such immediately preceding Fiscal Year; provided that (x) the -------- consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (vy) Company and its Restricted Subsidiaries may make Asset Sales at least 85% of the Assets Held for Sale or Development; provided that the consideration received -------- for such assets shall be in an amount at least equal to the fair market value thereof; and (vi) Company and its Restricted Subsidiaries may make Asset Sales of (1) the Las Vegas Facility, and (2) other assets having an aggregate fair market value not in excess of $40,000,000; provided that (w) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof; (x) the consideration received for such assets shall be in the form of Cash and/or promissory notes, which notes shall be pledged to Administrative Agent pursuant to the applicable Collateral Documents; (y) with respect to an Asset Sale involving the Las Vegas Facility, the Net Asset Sale Proceeds of such Asset Sale shall be applied as required by subsection 2.4B(iii)(d)cash; and (z) with respect to all other Asset Sales permitted under this subsection 7.7(vi), the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a). 7.8;
(vi) Company and its Subsidiaries may acquire, whether by purchase, issuance of stock or other equity or debt securities, merger, reorganization or any other method, not less than eighty percent (80%) of the ownership interest of any Person substantially engaged in a medical device business or a business described on Schedule 7.12 annexed hereto, substantially all of the assets of such Person, or any division or line of business through which any Person substantially engages in the medical device business or a business described on Schedule 7.12 annexed hereto in an aggregate amount up to $200,000,000, which amount may consist of an aggregate amount of up to $100,000,000 of Cash, Incurred Permitted Acquisition Indebtedness and Assumed Permitted Acquisition Indebtedness, in each case as determined on a cumulative basis from the Closing Date and excluding any amounts in connection with the World Medical Acquisition; provided that in the event that the Loans (after giving effect to such proposed acquisitions) obtain Ratings of not less than BB+ from S&P and Ba1 from ▇▇▇▇▇'▇, such acquisitions in the aggregate shall be permitted up to an unlimited amount, which amount may consist of an aggregate amount of up to $150,000,000 of Cash, Incurred Permitted Acquisition Indebtedness and Assumed Permitted Acquisition Indebtedness, as determined on a cumulative basis from the Closing Date and excluding any amounts in connection with the World Medical Acquisition; provided further that: (a) such Person becomes a Subsidiary of Company, or such business, property or other assets are acquired by Company or a direct or indirect wholly-owned Subsidiary of Company; (b) concurrently with the 116 consummation of such Permitted Acquisition, Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 with respect to such Permitted Acquisitions; and (c) prior to the consummation of any such Permitted Acquisition having a purchase price in excess of $5,000,000, Company shall deliver to Administrative Agent an Officer's Certificate (1) certifying that no Potential Event of Default or Event of Default under this Agreement shall then exist or shall occur as a result of such Permitted Acquisition, (2) demonstrating that after giving effect to such Permitted Acquisition and to all Indebtedness to be incurred or assumed or repaid in connection with or as consideration for such Permitted Acquisition, that Company is in Pro Forma Financial Covenant Compliance for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed Permitted Acquisition, (3) delivering a copy, prepared in conformity with GAAP (subject to year-end adjustments and the absence of footnotes), of (i) financial statements of the Person or business so acquired for the immediately preceding four consecutive Fiscal Quarter period corresponding to the calculation period for the financial covenants in the immediately preceding clause and (ii) audited or reviewed financial statements of the Person or business so acquired for the fiscal year ended within such period of such Person and (4) revised financial projections (in a form substantially consistent with previously provided projections) for the Company pro forma for any proposed Permitted Acquisition in excess of $50,000,000 for the succeeding four Fiscal Quarters; and
(vii) Company may consummate the World Medical Acquisition.
Appears in 1 contract
Sources: Credit Agreement (Arterial Vascular Engineering Inc)
Restriction on Fundamental Changes. Asset Sales and Primary ----------------------------------------------------------- Acquisitions. ---- Company shall notSubject to subsection 5.2, and shall not permit any of its Restricted Subsidiaries to, alter the corporate, capital or legal structure each of Company or any of and its Restricted Subsidiaries, or Subsidiaries will not enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor)lease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, property or fixed assets, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except: :
(i) any Restricted Subsidiary of Company may be merged or consolidated with or into Company or any wholly-owned Subsidiary Guarantorof Company or any other Person if as a result of such merger or consolidation such other Person becomes a Subsidiary of Company, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary Guarantorof Company; provided that, in the case of such a mergermerger or consolidation involving Company, Company or such -------- wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; ;
(ii) Company and its Restricted Subsidiaries may make Consolidated Capital Expenditures convey, sell, lease or otherwise dispose of in the ordinary course of business any property or asset which is obsolete or no longer useful in any of its businesses or is of de minimis value, as determined in good faith by the Board of Directors of Company or such Subsidiary, as the case may be;
(iii) in addition to any Rockware Asset Sales permitted under subsection 7.86.6(vi), so long as no Event of Default has occurred and is continuing or shall be caused thereby, Company and its Subsidiaries may convey, sell, lease or otherwise dispose of any of their assets outside the ordinary course of business; provided that (iiia) any such sale or other disposition is made for at least the fair market value of such assets; and (b) Company and its Restricted Subsidiaries may not sell or otherwise dispose of, in any one or more Asset Sales consummated after the Effective Date, an amount equal to or greater than an aggregate of (i) $500,000,000 in fair market value of stock or other assets pursuant to this subsection 6.6(iii) during any consecutive 12-month period after the Effective Date or (ii) $1,000,000,000 in fair market value of stock or other assets pursuant to this subsection 6.6(iii) during the term of this Agreement;
(iv) Company and its Subsidiaries may sell, resell or otherwise dispose of obsolete, worn out real or surplus personal property held for sale or resale in the ordinary course of business; (iv) Company and its Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided that the -------- consideration received for such assets shall be in an amount at least equal to the fair market value thereof; ;
(v) Company and its Restricted Subsidiaries may make Asset Sales sell accounts receivable pursuant to accounts receivable securitization facilities on customary terms for such facilities (including customary terms as to the non- recourse nature of such facilities to Company and its Subsidiaries with respect to defaults by account debtors in payment of any accounts receivable sold pursuant thereto);
(vi) Company and its Subsidiaries may, at any time on or prior to the second anniversary of the Assets Held for Sale or DevelopmentEffective Date, make Rockware Asset Sales; provided that (x) the consideration received -------- for such the assets sold, transferred or otherwise disposed of in any Rockware Asset Sale shall be in an amount at least equal to the fair market value thereof; and (vi) Company and its Restricted Subsidiaries may make Asset Sales of (1y) the Las Vegas Facility, and (2) other assets having an aggregate fair market value not in excess of $40,000,000; provided that (w) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof; (x) the consideration received for such assets shall be in the form of Cash and/or promissory notes, which notes shall be pledged to Administrative Agent pursuant to the applicable Collateral Documents; (y) with respect to an Asset Sale involving the Las Vegas Facility, the Net Asset Sale Proceeds proceeds of such Rockware Asset Sale shall be applied as required by subsection 2.4B(iii)(d2.4A(ii)(c); and
(vii) Company may, at any time on or prior to the first anniversary of the Effective Date, acquire and (z) dispose of Common Stock held in the Rabbi Trust pursuant to the exercise by an underwriter or underwriters of its or their over-allotment option in connection with respect to all other Asset Sales permitted under this subsection 7.7(vi), the Net Asset Sale Proceeds a public offering of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a). 7.8Common Stock.
Appears in 1 contract
Restriction on Fundamental Changes. Asset Sales and Primary ----------------------------------------------------------- Acquisitions. ---- ASSET SALES.
(a) The Company shall not, and shall not permit any of its Restricted the Company's Subsidiaries to, alter the corporate, capital corporate or legal structure of the Company or any of its Restricted the Company's Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease sublease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, property or assetsassets (including any Capital Stock of a Subsidiary, whether newly issued or outstanding), whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except: :
(i) any Restricted Subsidiary of the Company may be merged with or into the Company or any wholly-owned Subsidiary Guarantor, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to the Company or any wholly-owned Subsidiary Guarantor; provided that, in that (A) the case of such a merger, Company or such -------- wholly-owned Subsidiary Guarantor shall be is the continuing or surviving corporation; (B) immediately after such transaction no Potential Event of Default or Event of Default shall have occurred and be continuing; and (C) the Company or such Subsidiary Guarantor or the successor company (y) will have Consolidated Net Worth immediately after the transaction equal to or greater than the Consolidated Net Worth of the Company immediately preceding the transaction and (z) will, after giving pro forma effect thereto, be in compliance with Section 7.6;
(ii) the Company and its Restricted Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8; (iii) Company and its Restricted Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business; (iv) Company and its Restricted Company's Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided that the -------- consideration received for such assets shall be in an amount at least equal to the fair market value Fair Market Value thereof; ;
(viii) the Company and its Restricted the Company's Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iv) the Company and the Company's Subsidiaries may make Asset Sales to Persons who are not Affiliates of the Assets Held for Sale or DevelopmentCompany and the Company's Subsidiaries; provided that (a) the consideration received -------- for such assets shall be in an amount at least equal to the fair market value Fair Market Value thereof; (b) at least 85% of the consideration received shall be Cash; and (vi) Company and its Restricted Subsidiaries may make Asset Sales of (1c) the Las Vegas Facility, and (2) other assets having an aggregate fair market value not in excess of $40,000,000; provided that (w) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof; (x) the consideration received for such assets shall be in the form of Cash and/or promissory notes, which notes shall be pledged to Administrative Agent pursuant to the applicable Collateral Documents; (y) with respect to an Asset Sale involving the Las Vegas Facility, the Net Asset Sale Proceeds of such Asset Sale shall be applied as required by subsection 2.4B(iii)(d); and (z) with respect to all other Asset Sales permitted under this subsection 7.7(vi), the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(aSection 7.7(b). 7.8;
(v) the Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of the Company's Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law; and
(vi) the Company may alter the legal structure of its Mexico Subsidiary for the purpose of reducing its tax expense, provided that after giving effect to such new capital structure, the Company shall own, directly or indirectly, at least the same percentage of the Capital Stock of each newly formed entity as it did of its Mexico Subsidiary prior to such event.
(b) The Company shall not, and shall not permit any of the Company's Subsidiaries to consummate any Asset Sale unless the Net Asset Sale Proceeds, if any, received by the Company or such Subsidiary are applied as follows:
(A) first, to prepay, repay or purchase Senior Obligations (or cash collateralize letters of credit issued under a Credit Agreement relating to such Senior Obligations) permitted by the terms of this Agreement within 180 days following the receipt of the Net Asset Sale Proceeds from any Asset Sale; provided that (x) any such repayment of Senior Obligations shall, in the case of any Senior Obligations under any Credit Agreement, result in a permanent reduction of the commitments under the relevant Credit Agreement in an amount equal to the principal amount so repaid and (y) any proceeds applied to cash collateralize letter of credit Obligations shall upon return to the Company or any of its Subsidiaries once again constitute Net Asset Sale Proceeds which shall be required to be applied as provided for in this clause (b);
(B) second, to the extent of the balance of Net Asset Sale Proceeds after application as described in subclause (A) above, to the extent the Company elects, to an Investment in property or other assets (including Capital Stock or other securities purchased in connection with the acquisition of Capital Stock or property of another Person so long as such Person becomes a Subsidiary of the Company or is acquired substantially in its entirety) otherwise in compliance with the terms of this Agreement; provided that such Investment occurs within 180 days following receipt of such Net Asset Sale Proceeds; and
(C) third, if on such 180th day in the case of clause (A) or (B) with respect to any Asset Sale, the Net Asset Sale Proceeds (together with the Net Asset Sale Proceeds from any other Asset Sale with respect to which an offer has not been made pursuant to Section 6.11) exceed $2,500,000, the Company shall, subject to the provisions of Sections 10 and 11 of this Agreement, apply an amount equal to the Net Asset Sale Proceeds not so applied to an offer to repurchase the Notes, at a purchase price in cash equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the purchase date in accordance with the terms of Section 6.11.
Appears in 1 contract
Restriction on Fundamental Changes. Asset Sales and Primary ----------------------------------------------------------- Acquisitions. ---- Company shall not, and shall not permit any of its Restricted Subsidiaries to, alter the corporate, capital or legal structure of Company or any of its Restricted Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or lease, sub-lease (as lessor or sublessor)lease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business, property or fixed assets, whether now owned or hereafter acquired, or acquire by purchase or otherwise all 50% or substantially all more of the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except: :
(i) any Restricted Subsidiary of Company (other than a Guarantor) may be merged with or into Company or any wholly-owned Subsidiary Guarantorof Company, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary Guarantorof Company; provided that, in the case of such a merger, Company or such -------- wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; provided further if any Guarantor or grantor under a Collateral Document is the disappearing entity in a merger with a wholly-owned Subsidiary that is not a Guarantor or grantor, the surviving corporation shall execute a Guaranty and/or a Subsidiary Security Agreement, as the case may be;
(ii) any Subsidiary of Company may change its legal structure so long as (X) any such modification does not in any manner impair any Lender's ability to realize the Collateral owned by such Subsidiary upon an Event of Default and (Y) if such Subsidiary is the disappearing entity in a merger devised to effect such a structural change, the surviving entity shall execute a Guaranty and/or a Subsidiary Security Agreement, as the case may be;
(iii) subject to subsections 7.11 and 2.4A(iii), Company and its Restricted Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8; (iii) Company and its Restricted Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business; (iv) Company and its Restricted Subsidiaries may sell or otherwise dispose Asset Sales of assets having a fair market value not in transactions that do not constitute Asset Salesexcess of $5,000,000 on an individual basis; provided that that, with respect to the -------- sale of any asset having a fair market value equal to or exceeding $2,500,000, (x) the consideration received for such assets shall be in an amount at least equal to the fair market value thereofthereof and (y) at least eighty percent (80%) of the consideration received shall be Cash; and
(viv) Company and its Restricted Subsidiaries may make Asset Sales acquisitions of the Assets Held for Sale or Development; provided that the consideration received -------- for such assets shall be in an amount at least equal to the fair market value thereof; and (vi) Securities issued by Company and its Restricted Subsidiaries may make Asset Sales of (1) the Las Vegas Facility, and (2) other assets having an aggregate fair market value not in excess of $40,000,000; provided that (w) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof; (x) the consideration received for such assets shall be in the form of Cash and/or promissory notes, which notes shall be pledged to Administrative Agent pursuant to the applicable Collateral Documents; (y) consistent with respect to an Asset Sale involving the Las Vegas Facility, the Net Asset Sale Proceeds of such Asset Sale shall be applied as required by subsection 2.4B(iii)(d); and (z) with respect to all other Asset Sales permitted under this subsection 7.7(vi), the Net Asset Sale Proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a). 7.87.5.
Appears in 1 contract
Restriction on Fundamental Changes. Asset Sales AsSales and Primary ----------------------------------------------------------- Acquisitions. ---- ------------------------------------------------------------ Company shall not, and shall not permit any peany of its Restricted Subsidiaries to, alter the corporate, capital or legal structure of structuf Company or any of its Restricted Subsidiaries, or enter into any transaction of merger merge or consolidationconsolidate, or liquidateliq e, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, property or assets, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except: :
(i) Company and Merger Sub may consummate the Tender Offer and the Merger;
(ii) any Restricted Subsidiary of Company may be merged with or into Company or any wholly-owned Subsidiary Guarantor, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary Guarantor; provided that, in the case of such a merger, Company -------- or such -------- wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; (ii) Company and its Restricted Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8; ;
(iii) Company and its Restricted Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business; ;
(iv) Company and its Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; , provided that -------- the consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(v) Company and its Subsidiaries may make Asset Sales of assets (other than the Tendered Shares) having a fair market value of not in excess of $10,000,000 during any Fiscal Year, provided that (a) the -------- consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (v) Company thereof and its Restricted Subsidiaries may make Asset Sales of the Assets Held for Sale or Development; provided that the consideration received -------- for such assets shall be in an amount at least equal to the fair market value thereof; and (vi) Company and its Restricted Subsidiaries may make Asset Sales of (1) the Las Vegas Facility, and (2) other assets having an aggregate fair market value not in excess of $40,000,000; provided that (w) the Cash or non-cash consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof; (x) the consideration received for such assets shall be in the form of Cash and/or promissory notes, which notes shall be pledged to Administrative Agent pursuant to the applicable Collateral Documents; (y) with respect to an Asset Sale involving the Las Vegas Facility, the Net Asset Sale Proceeds of such Asset Sale shall be applied as required permitted by subsection 2.4B(iii)(d7.3(ix); and (zb) with respect to all other Asset Sales permitted under this subsection 7.7(vi), the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a). 7.8; and
(vi) subject to subsection 6.7, after January 1, 2000, Company and its Subsidiaries (other than Inactive Subsidiaries) may acquire by purchase or otherwise (each, a "Subsequent Acquisition") all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person (other than DMG) or any division or line of business of any Person (other than DMG) (any such business, property, assets, stock, evidence of ownership, division or line of business, being a "Target"), provided that (a) the sum of the aggregate -------- Total Purchase Price of all Subsequent Acquisitions does not exceed $60,000,000 in the aggregate during the term of this Agreement and (b) Company shall have delivered a Compliance Certificate to Administrative Agent demonstrating that, after giving effect to such proposed Subsequent 120 Acquisition, the Leverage Ratio is in compliance with the requirements of subsection 7.6C;
(vii) licenses or sublicenses by the Company and its Subsidiaries of software, trademarks, patents and other intellectual property in the ordinary course of business and which do not materially interfere with the business of the Company or any of its Subsidiaries;
(viii) transfers of condemned property to the respective governmental authority or agency that have condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of properties that have been subject to a casualty to the respective insurer of such property or its designee as part of an insurance settlement; and
(ix) Company and its Subsidiaries may sell or otherwise dispose of Investments permitted to be made or owned by subsection 7.3(i).
Appears in 1 contract
Sources: Credit Agreement (Urs Corp /New/)
Restriction on Fundamental Changes. Asset Sales and Primary ----------------------------------------------------------- Acquisitions. ---- Acquisitions Company shall not, and shall not permit any of its Restricted Subsidiaries to, alter the corporate, capital or legal structure of Company or any of its Restricted Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, property or assets, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all of the business, property or fixed assets of, or any operating division or facility of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except: :
(i) any Restricted Subsidiary of Company may be merged with or into Company or any wholly-owned Subsidiary Guarantor, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary Guarantor; provided that, in the case of such a merger, Company or such -------- wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; ;
(ii) Company and its Restricted Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8; (iii) Company and its Restricted Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course Ordinary Course of business; Business;
(iviii) Company and its Restricted Subsidiaries may sell or otherwise dispose of assets inventory in the Ordinary Course of Business;
(iv) Company and its Subsidiaries may consummate the transactions that do not constitute Asset Salesdescribed in Schedule 7.7(iv) annexed hereto;
(v) in addition to the sale and other dispositions permitted under clause (vii) of this subsection 7.7, Company and its Subsidiaries may sell or otherwise dispose of assets; provided that the -------- aggregate fair market value of all such assets does not exceed $5,000,000 in any Fiscal Year;
(vi) Company may liquidate, wind-up or dissolve the Inactive Subsidiaries;
(vii) Company and its Subsidiaries may make asset sales, or assign or sublet leased properties; provided that the aggregate book value of all such assets, leasehold interests and leasehold improvements sold, assigned or sublet pursuant to this clause (vii) after the date hereof does not exceed 5% of the total assets of Company and its Subsidiaries as of the last day of the most recently ended Fiscal Quarter, determined on a consolidated basis in accordance with GAAP; provided further that the book value of leasehold interests for the purposes of the immediately preceding proviso shall be equal to the annual rents paid or payable by Company or its Subsidiary under the related lease multiplied by eight; and provided further that (x) the consideration received for such assets or leasehold interests shall be in an amount at least equal to the fair market value thereof; (vy) the consideration received shall be cash, secured promissory notes, properties similar to the assets or properties sold, assigned or subleased, or any combination thereof and (z) the cash received in connection with such sale, assignment or sublease (net of expenses in connection therewith) shall (except to the extent the assets so sold, assigned or subleased secure specific Indebtedness, or such Indebtedness is secured by a letter of credit, and the terms of such Indebtedness require that such cash be applied to repay such Indebtedness) within 180 days of receipt thereof (A) be applied to the permanent reduction of the Commitments (and the prepayment of the Loans to the extent that the Total Utilization of the Commitments would exceed the Commitments as so reduced), or (B) be invested in assets or properties (other than bonds, notes, obligations and securities) used in the operation of the businesses permitted pursuant to subsection 7.14;
(viii) Company and its Restricted Subsidiaries may make Asset Sales of the Assets Held for Sale or DevelopmentAcquisitions; provided that no Event of Default or Potential Event of Default shall have occurred and be continuing or shall occur as a result thereof and, (x) if the consideration received -------- for such assets Acquisition Consideration therefor equals or exceeds $20,000,000, Company shall be in an amount at least equal deliver to the fair market value thereof; and (vi) Company and its Restricted Subsidiaries may make Asset Sales of Agent (1) a Compliance Certificate, setting forth on a pro-forma basis, taking into account the Las Vegas Facilityproposed Acquisition for the four-Fiscal Quarters immediately preceding the date of calculation, the financial covenant calculations in subsection 7.6, which calculations shall reflect compliance with such covenants and be certified by the chief financial officer of the Company not less than 10 Business Days before the consummation of such proposed Acquisition, and (2) other assets having an aggregate fair market value within 10 Business Days following the consummation of such Acquisition, the documents required by subsection 6.9, and (y) if the Acquisition Consideration therefor equals or exceeds $30,000,000, Company shall obtain the consent of Requisite Lenders prior to the consummation of such transaction, which consent shall not be unreasonably withheld, and shall deliver to Agent the documents and information referred to in excess of $40,000,000(x) above in the manner provided therein; provided further that in the case of an acquisition of stock, the acquired Person shall be a Subsidiary of Company; and provided further that the aggregate amount of Acquisition Consideration in connection with such Acquisitions (other than the Acquisition set forth on Schedule 7.7 (viii) annexed hereto shall not exceed $55,000,000 in any Fiscal Year;
(ix) Company and its Subsidiaries may engage in sale/leaseback transactions permitted under subsection 7.10;
(x) Company and its Subsidiaries may make the Acquisitions which are part of the CMS Transactions;
(xi) Company may make the purchases, reissuances and resales of shares of its Common Stock to the extent permitted under subsection 7.5(v) and the definition of Employee Stock Discount Program; and
(xii) Company and its wholly-owned Subsidiary Guarantors may sell or otherwise transfer minority ownership interests in wholly-owned Subsidiary Guarantors to any Person other than Company and its Subsidiaries (collectively, the "Minority Interest Dispositions") and such wholly-owned Subsidiary Guarantors shall be released from the Subsidiary Guaranty and cease to be Subsidiary Guarantors upon the closing of such sale or transfer and shall thereupon become a Non-Guarantor Subsidiary; provided that, (w) Agent shall continue to have a valid and perfected first priority security interest in the consideration received for -------- portion of the ownership interests in such assets shall be in an amount at least equal to the fair market value thereof; Non-Guarantor Subsidiary not sold or transferred, (x) the consideration received for all such assets sales or transfers shall be in the form of Cash and/or promissory notesat arms-length and for fair consideration, which notes shall be pledged to Administrative Agent pursuant to the applicable Collateral Documents; (y) the aggregate book value of gross assets represented by the pro rata share therein of such transferred ownership interests in respect of all such sales or transfers after the date hereof, together with respect to an Asset Sale involving (without duplication) the Las Vegas FacilityNon-Guarantor Non-CMS Subsidiary Indebtedness, the Net Asset Sale Proceeds of such Asset Sale Non-Guarantor Non-CMS Subsidiary Contingent Obligations and Non-Guarantor Non-CMS Subsidiary Investments permitted under subsections 7.1(iv)(c), 7.4(iv)(b) and 7.3(vi), respectively, shall be applied as required by subsection 2.4B(iii)(d); not exceed $5,000,000 in the aggregate at any time, and (z) with respect ownership interests in no more than five Subsidiaries shall be sold or transferred pursuant to all other Asset Sales permitted under this subsection 7.7(vi), the Net Asset Sale Proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a7.7(xii). 7.8Consolidated Capital Expenditures.nditures.8Consolidated Capital Expenditures Company shall not, and shall not permit its Subsidiaries to, make or incur Consolidated Capital Expenditures, in any Fiscal Year indicated below, in an aggregate amount in excess of the corresponding amount set forth below opposite such Fiscal Year: Maximum Consolidated Fiscal Year Capital Expenditures Fiscal Year 1996 $15,000,000 Fiscal Year 1997 $19,000,000 Fiscal Year 1998 $21,000,000 Fiscal Years 1999, 2000 and 2001 and each Fiscal Year thereafter $22,000,000
Appears in 1 contract
Restriction on Fundamental Changes. Asset Sales and Primary ----------------------------------------------------------- Acquisitions. ---- A. Other than as permitted by subsection 6.7B, neither Holding, Company shall notnor any Subsidiary may, and shall not permit without the consent of Requisite Lenders, acquire or create any Subsidiaries or convey, sell, lease, sublease or transfer any of its Restricted Subsidiaries to, alter the corporate, capital or legal structure of Company or assets to any of its Restricted Subsidiaries.
B. Neither Holding, or Company nor any Subsidiary will enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or exchange, lease, sub-lease (as lessor or sublessor)lease, transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any substantial part of its business, property or assetsfixed assets or all or any portion of the stock or other evidence of beneficial ownership of, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except: :
(i) any Restricted Subsidiary of Company Holding may be merged or consolidated with or into Company or any wholly-owned Subsidiary Guarantor, or be liquidated, wound up or dissolvedCompany, or all or any part substantially all of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company and Holding thereafter may be liquidated, wound up or any wholly-owned Subsidiary Guarantordissolved; provided PROVIDED that, in the case of such a mergermerger or consolidation, Company or such -------- wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; ;
(ii) Holding, Company or any Subsidiary thereof, may acquire stock or assets of any Person; PROVIDED that in the case of the acquisition of all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person, (w) Agent shall have received at least 10 days prior to the date of such acquisition a Compliance Certificate, setting forth the covenant calculations described therein after giving pro forma effect to such acquisition as of the date of Holding's most recent available quarterly consolidated financial statements, (x) the aggregate Acquisition Value permitted by this subsection 6.7B(ii) in connection with all such acquisitions since January 1, 1996 shall not exceed an amount of $25,000,000, (y) in the case of an acquisition of stock where the acquired Person will become a Subsidiary of Holding which is not a direct or indirect Subsidiary of Company, the cash consideration paid in respect of any such acquisition by Holding may not exceed 20% of the Acquisition Value of such acquisition, and its Restricted Subsidiaries may make Consolidated Capital Expenditures permitted under (z) in the case of an acquisition of stock, the acquired Person will become a Subsidiary of Holding or Company; PROVIDED, FURTHER, that if such acquired Person becomes a Material Subsidiary, it shall comply with subsection 7.8; 5.10(A) or subsection 5.10(B), as appropriate;
(iii) Company or a Subsidiary thereof may sell, lease, license, exchange or otherwise dispose of assets or rights in Asset Sale transactions; PROVIDED that (A) any Asset Sale is made for at least the fair market value of such assets (as determined in good faith by Company or such Subsidiary), (B) the aggregate Net Cash Proceeds of Asset Sale transactions since February 24, 1995 with respect to assets located in the United Kingdom shall not exceed 10% of the Pounds Sterling equivalent of the net book value, determined as of February 24, 1995, of all assets of Company and its Restricted Subsidiaries located in the United Kingdom on February 24, 1995, (C) the aggregate Net Cash Proceeds of Asset Sales transactions since February 24, 1995 with respect to assets located in Switzerland shall not exceed 10% of the Swiss Franc equivalent of the net book value, determined as of February 24, 1995, of all assets of Company and its Subsidiaries located in Switzerland on February 24, 1995, (D) the aggregate Net Cash Proceeds of Asset Sales transactions since February 24, 1995 with respect to assets located in Germany shall not exceed 10% of the German ▇▇▇▇ equivalent of the net book value, determined as of February 24, 1995, of all assets of Company and its Subsidiaries located in Germany on February 24, 1995, (E) Asset Sale transactions involving assets located in the United States may be made if the Net Cash Proceeds thereof are applied as provided in subsection 2.4(A)(ii) and (F) with respect to Asset Sale transactions not otherwise referred to in clauses (B), (C), (D) or (E) above or not otherwise expressly permitted by this subsection 6.7B, Company receives the prior written consent of Requisite Lenders for any such Asset Sale or series of related Asset Sales involving the fair market value of assets (as determined in good faith by Company or such Subsidiary) or sales price in excess of $250,000; PROVIDED, FURTHER, that the restrictions on Asset Sale transactions set forth in the foregoing PROVISO shall not apply to any Asset Sale transactions involving (1) the Proposed Closed Facilities, (2) any Discontinued Operations or (3) any capital stock or treasury stock of Holding, or any rights, options or warrants to acquire same; PROVIDED, HOWEVER in no event may any stock of any Material Subsidiary be sold;
(iv) Holding and its Subsidiaries may make Sale/leasebacks permitted by subsection 6.8;
(v) A Domestic Subsidiary may be merged or consolidated with or into Company or another Domestic Subsidiary, or be liquidated, wound up or dissolved; PROVIDED, HOWEVER, that in the case of such a merger or consolidation of a Material Domestic Subsidiary, (i) Company or another Material Domestic Subsidiary shall be the continuing or surviving corporation and (ii) another Subsidiary which becomes a Material Domestic Subsidiary and complies with the requirements of subsection 5.10A shall be the continuing or surviving corporation;
(vi) A Foreign Subsidiary may be merged or consolidated with or into another Foreign Subsidiary; PROVIDED, HOWEVER, that (x) if any capital stock of either such Foreign Subsidiary shall have previously been required to be pledged to Collateral Agent or Eurocurrency Administrative Agent, such Foreign Subsidiary shall be the surviving corporation in such merger or consolidation or the same proportion of the surviving corporation's capital stock shall be similarly pledged to Collateral Agent or Eurocurrency Administrative Agent, as applicable, and (y) a Foreign Subsidiary not part of Discontinued Operations may not be merged or consolidated with another Foreign Subsidiary that is part of Discontinued Operations unless the former Subsidiary or another Subsidiary which is not a part of Discontinued Operations is the surviving or continuing corporation. Any Foreign Subsidiary the capital stock of which is not required to be pledged to Collateral Agent or Eurocurrency Collateral Agent may be liquidated, wound up or dissolved;
(vii) Holding or Company may create one or more new Domestic Subsidiaries thereof; PROVIDED such Domestic Subsidiary, if it is or becomes a Material Domestic Subsidiary, shall comply with subsection 5.10(A);
(viii) Holding or a Subsidiary thereof may create one or more new Foreign Subsidiaries of such Person; PROVIDED, subject to subsection 5.10(B), if such Foreign Subsidiary is held directly by (i) Holding or a Domestic Subsidiary and such Foreign Subsidiary is or becomes a Material Subsidiary, such Person shall pledge 65% of the capital stock of such Foreign Subsidiary to secure the Obligations pursuant to a pledge agreement in form and substance reasonably satisfactory to Agent or (ii) a Foreign Subsidiary which is a Eurocurrency Borrower and party to a Eurocurrency Security Document that is a pledge of shares and such Foreign Subsidiary is or becomes a Material Subsidiary, such Eurocurrency Borrower shall pledge 100% of the capital stock of such Foreign Subsidiary to secure its obligations under the relevant Eurocurrency Credit Agreement pursuant to a pledge agreement in form and substance reasonably satisfactory to Eurocurrency Administrative Agent;
(ix) Any of Holding and its Subsidiaries may sell, lease, consign, transfer or otherwise dispose of obsolete, worn out or surplus property Inventory to any Person in the ordinary course of business;
(x) Any of Holding and its Subsidiaries may acquire additional capital stock of an existing Subsidiary thereof from such Subsidiary; PROVIDED that (ivi) if such Subsidiary is a Domestic Subsidiary and any previously outstanding capital stock of such Subsidiary shall have been pledged to Collateral Agent to secure the Obligations and the Eurocurrency Guaranty Obligations, 100% of such additional capital stock shall be similarly pledged to Collateral Agent, (ii) if such Subsidiary is a Foreign Subsidiary and any previously outstanding capital stock of such Subsidiary shall have been pledged to the Collateral Agent to secure the Obligations and the Eurocurrency Guaranty Obligations, 65% of such additional stock shall be similarly pledged to Collateral Agent, and (iii) if such Subsidiary is a Foreign Subsidiary and any previously outstanding capital stock of such Subsidiary shall have been pledged to Eurocurrency Administrative Agent to secure the obligations under the relevant Eurocurrency Credit Agreement, 100% of such additional stock shall be similarly pledged to the Eurocurrency Administrative Agent;
(xi) Investments permitted by subsection 6.3;
(xii) Any of Holding and its Subsidiaries may dispose of property that is obsolete, worn out or otherwise no longer needed in its business, including abandonment of trademarks, patents, copyrights and other intellectual property no longer economically practicable to maintain;
(xiii) Any Subsidiary other than a Material Subsidiary may sell or discount its accounts receivable to any bank or other financial institution in the ordinary course of its business;
(xiv) Holding and its Subsidiaries may enter into, and perform, any transactions permitted by subsection 6.10 or 6.13; and
(xv) Company or a Subsidiary thereof may engage in Asset Transfer transactions; PROVIDED that (A) the aggregate net book value of assets transferred in US/US Transfers, whether in one or more transactions or a series of related transactions, since February 24, 1995 or the most recent Recalculation Date, may not exceed $5,000,000, (B) the aggregate net book value of the assets transferred in US/Foreign Transfers, whether in one or more transactions or a series of related transactions or otherwise, since February 24, 1995 may not exceed $7,500,000, (C) the aggregate net book value of the assets transferred in UK/Swiss Transfers, whether in one or more transactions or a series of related transactions, since February 24, 1995 may not exceed 25% of the Pounds Sterling equivalent net book value of all assets of Company and its Restricted Subsidiaries located in the United Kingdom on February 24, 1995, (D) the aggregate net book value of the assets transferred in Swiss/UK Transfers, whether in one or more transactions or a series of related transactions, since February 24, 1995 may sell or otherwise dispose not exceed 25% of the Swiss Franc equivalent net book value of all assets in transactions that do not constitute Asset Sales; provided that the -------- consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (v) of Company and its Restricted Subsidiaries may make Asset Sales located in Switzerland on February 24, 1995, (E) the aggregate net book value of the Assets Held for Sale assets transferred in German Transfers, whether in one or Development; provided that more transactions or a series of related transactions, since February 24, 1995 may not exceed 25% of the consideration received -------- for such German ▇▇▇▇ equivalent net book value of all assets shall be in an amount at least equal to the fair market value thereof; and (vi) of Company and its Restricted Subsidiaries may make Asset Sales of (1) the Las Vegas Facilitylocated in Germany on February 24, 1995 and (2F) other provided that with respect to Asset Transfer transactions involving fixtures, machinery and equipment not otherwise referred to in Clause (A), (B), (C), (D) or (E) above or not otherwise expressly permitted by this subsection 6.7B, Company receives the prior written consent of Requisite Lenders for any such Asset Transfer or series of related Asset Transfers involving the net book value of assets having an aggregate fair market value not in excess of $40,000,0001,000,000; provided PROVIDED, FURTHER, that (w) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof; (x) the consideration received for such assets shall be restrictions on Asset Transfer transactions set forth in the form foregoing PROVISO shall not apply to any Asset Transfer transactions involving the Proposed Closed Facilities or any Discontinued Operations. Upon any disposition of Cash and/or promissory notesproperty or assets in compliance with this subsection 6.7, which notes shall be pledged to Administrative Agent pursuant to other than as the applicable Collateral Documents; (y) with respect to result of an Asset Sale involving the Las Vegas Facility, the Net Asset Sale Proceeds of such Asset Sale shall be applied as required by Transfer referred to in subsection 2.4B(iii)(d); and (z) with respect to all other Asset Sales permitted under this subsection 7.7(vi6.7B(xv)(A), (C) or (D), Lenders will cause Collateral Agent to, and Collateral Agent will, take such action as is necessary to evidence the Net Asset Sale Proceeds release of the Liens of Lenders, on such Asset Sales shall be applied property or assets, including delivering to Holding, Company or any Material Subsidiary, as required by subsection 2.4B(iii)(a). 7.8appropriate, appropriate releases and termination statements.
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Restriction on Fundamental Changes. Asset Sales and Primary ----------------------------------------------------------- Acquisitions. ---- Company shall notA. Other than as permitted by subsection 6.7B, and shall not permit neither Holdings nor any of its Restricted Subsidiaries tomay, alter without the corporateconsent of Requisite Lenders, capital acquire or legal structure of Company create any Subsidiaries or convey, sell, lease, sublease or transfer any of its Restricted assets to any Subsidiaries.
B. Neither Holdings, or nor any of its Subsidiaries will enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or exchange, lease, sub-lease (as lessor or sublessor)lease, transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any substantial part of its business, property or assetsfixed assets or all or any portion of the stock or beneficial ownership, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially substanti- ally all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except: :
(i) Borrower may sell, exchange or otherwise dispose of assets in Asset Sale transactions; provided that any Restricted Asset Sale is made for the fair market value of such assets;
(ii) Borrower may sell, exchange or otherwise dispose of obsolete or worn out equipment in the ordinary course of Borrower's business;
(iii) Borrower may sell Inventory in the ordinary course of its business; and
(iv) a Subsidiary of Company Borrower acquired pursuant to subsection 6.7B(i) may be merged or consolidated with or into Company or any wholly-owned Subsidiary GuarantorBorrower, or be liquidated, wound up or dissolved; provided, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary Guarantor; provided that, that in the case of such a mergermerger or consolida- tion, Company or such -------- wholly-owned Subsidiary Guarantor Borrower shall be the continuing or surviving corporationcorpora- tion; (ii) Company and its Restricted Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8; (iii) Company and its Restricted Subsidiaries may dispose provided, further, that as a result of obsoletesuch merger or consolidation, worn out or surplus property in the ordinary course of business; (iv) Company and its Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do Borrower shall not constitute Asset Sales; provided that the -------- consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (v) Company and its Restricted Subsidiaries may make Asset Sales of the Assets Held for Sale or Development; provided that the consideration received -------- for such assets shall be in an amount at least equal to the fair market value thereof; and (vi) Company and its Restricted Subsidiaries may make Asset Sales of (1) the Las Vegas Facility, and (2) other assets having an aggregate fair market value not in excess of $40,000,000; provided that (w) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof; (x) the consideration received for such assets shall be in the form of Cash and/or promissory notes, which notes shall be pledged to Administrative Agent pursuant to the applicable Collateral Documents; (y) become liable with respect to an Asset Sale involving the Las Vegas Facility, the Net Asset Sale Proceeds any liabilities of such Asset Sale shall be applied as required Subsidiary which were in exist- ence prior to the Subsidiary's acquisition by subsection 2.4B(iii)(d); and (z) with respect to all other Asset Sales permitted under this subsection 7.7(vi), the Net Asset Sale Proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a). 7.8Borrower.
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Restriction on Fundamental Changes. Asset Sales and Primary ----------------------------------------------------------- Acquisitions. ---- Company Parent shall not, and shall not permit any of its Restricted Subsidiaries to, alter the corporate, capital or legal structure of Company Parent or any of its Restricted Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, property or assets, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except: :
(i) Borrower may be merged into Parent and any Restricted Subsidiary of Company Borrower may be merged with or into Company or any wholly-owned Subsidiary Guarantor, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary Guarantor; provided that, in the case of such a merger, Company or such -------- wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; 125
(ii) Company Borrower and its Restricted Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8; ;
(iii) Company Borrower and its Restricted Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business; ;
(iv) Company Borrower and its Restricted Subsidiaries may sell or otherwise dispose of assets for cash in transactions that do not constitute Asset Sales; provided that the -------- consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(v) subject to subsection 7.11 Borrower and its Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $2,000,000; provided that (x) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (vy) Company and its Restricted Subsidiaries may make Asset Sales of the Assets Held for Sale or Development; provided that the sole consideration received -------- for such assets shall be in an amount at least equal to the fair market value thereof; and (vi) Company and its Restricted Subsidiaries may make Asset Sales of (1) the Las Vegas Facility, and (2) other assets having an aggregate fair market value not in excess of $40,000,000; provided that (w) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof; (x) the consideration received for such assets shall be in the form of Cash and/or promissory notes, which notes shall be pledged to Administrative Agent pursuant to the applicable Collateral Documents; (y) with respect to an Asset Sale involving the Las Vegas Facility, the Net Asset Sale Proceeds of such Asset Sale shall be applied as required by subsection 2.4B(iii)(d)cash; and (z) with respect to all other Asset Sales permitted under this subsection 7.7(vi), the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as required by subsection subsec tion 2.4B(iii)(a). 7.8;
(vi) Borrower and its Subsidiaries may make acquisitions in an aggregate amount not to exceed (x) $25,000,000 in the aggregate if the aggregate principal amount of Term Loans outstanding equals or exceeds $5,000,000 but equals or is less than $10,000,000 and (y) $35,000,000 in the aggregate if the aggregate principal amount of Term Loans outstanding is, less than $5,000,000; provided that with respect to acquisitions made pursuant to this subsection 7.7(vi): (a) any newly acquired or created Subsidiary of Borrower or any of its Subsidiaries shall be a wholly owned Subsidiary thereof; (b) immediately before and after giving effect thereto, no Potential Event of Default or Event of Default shall have occurred and be continuing or would result therefrom; (c) any business acquired or invested in pursuant to this subsection 7.7(vi) shall be in the same line of business as the business of Borrower or any of its Subsidiaries;
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Sources: Credit Agreement (CFP Holdings Inc)