Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except: (a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, and Dispositions of non-core assets or property, including assets or property, no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated); (b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business; (c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property; (d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; (e) Dispositions permitted by Section 7.03, Investments permitted by Section 7.04, Restricted Payments permitted by Section 7.07 and Liens permitted by Section 7.02;
Appears in 8 contracts
Sources: Credit Agreement (Builders FirstSource, Inc.), Credit Agreement (Builders FirstSource, Inc.), Credit Agreement (Builders FirstSource, Inc.)
Asset Sales. The Borrower Holdings will not, and nor will not it (i) permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest owned by it it, or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than (A) issuing directors’ qualifying shares, shares or nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than Law, (B) issuing Equity Interests to Holdings or any Restricted Subsidiary, (C) any non-wholly-owned Restricted Subsidiary issuing Equity Interests of such Subsidiary to each owner of Equity Interests of such Subsidiary ratably based on their relative ownership interests and (D) any Equity Interests that are pledged (and remain pledged) by a Loan Party to secure the Borrower Secured Obligations hereunder), in a single transaction or a Restricted Subsidiary in compliance with Section 7.04(c)) series of related transactions (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of Holdings and the Borrower and its Restricted Subsidiaries (including (i) allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated)invalidated or (ii) disposing of, discontinuing the use or maintenance of, abandoning, failing to pursue or otherwise allowing to lapse, expire, terminate or put into the public domain any of its Intellectual Property if the Borrower determines in its reasonable business judgment that such discontinuance is desirable in the conduct of its business and does not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of businessincluding on an intercompany basis);
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property property, or other assets of comparable or greater value or usefulness to the business or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower Holdings or a any Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; ;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.08 and Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e);
(f) Dispositions of cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions of accounts receivable, notes receivable or other current assets in the ordinary course of business or consistent with industry practice or the conversion of accounts receivable to notes receivable or other dispositions of accounts receivable in connection with the collection or compromise thereof;
(h) leases, subleases, non-exclusive licenses or non-exclusive sublicenses, in each case in the ordinary course of business and that do not materially interfere with the business of Holdings and the Restricted Subsidiaries, taken as a whole;
(i) transfers of property subject to Recovery Events upon receipt of the Net Proceeds of such Recovery Event;
(j) Dispositions of other assets or property (including the sale or issuance of Equity Interests in a Restricted Subsidiary); provided that (i) such Disposition is made for Fair Market Value, (ii) with respect to any Disposition pursuant to this clause (j) for a sale price in excess of the greater of $25,000,000, Holdings or any Restricted Subsidiary shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (ii), (A) any liabilities (as shown on the most recent balance sheet of Holdings provided hereunder or in the footnotes thereto) of Holdings or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, (1) that are assumed by the transferee with respect to the applicable Disposition and (2) in respect of which Holdings and each Restricted Subsidiary is no longer obligated with respect to such liabilities or are indemnified against further liabilities, shall be deemed to be cash, (B) any securities received by Holdings or such Restricted Subsidiary from such transferee that are converted by Holdings or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash, (C) Indebtedness of a Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Disposition, to the extent that Holdings and each other Restricted Subsidiary is released from any guarantee of such Indebtedness in connection with such Disposition, shall be deemed to be cash and (D) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (j) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of the greater of (x) $20,000,000 and (y) 10.0% of Consolidated EBITDA for the most recently ended Test Period (net of any Designated Non-Cash Consideration converted into cash or Cash Equivalents), with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash, (iii) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b) and (iv) no Event of Default has occurred and is continuing (or would occur after giving Pro Forma Effect to such Disposition);
(k) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in, joint venture agreements and similar binding arrangements;
(l) Dispositions of any assets (including Equity Interests) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(m) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(n) Dispositions of the Equity Interests of Unrestricted Subsidiaries, other than Unrestricted Subsidiaries substantially all of the assets of which are cash and Cash Equivalents or proceeds thereof;
(o) Dispositions in connection with any Tax Restructuring provided that after giving effect to any such Disposition, the Guarantees of the Loans and the security interests of the Lenders in the Collateral, taken as a whole, would not be adversely impaired;
(p) the issuance of any Equity Interests of Holdings;
(q) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(r) [reserved];
(s) each Loan Party and each of its Restricted Subsidiaries may surrender or waive contractual rights and settle or waive contractual or litigation claims in the ordinary course of business; and
(t) the unwinding of any Swap Agreement pursuant to its terms. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.05 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agents shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing.
Appears in 7 contracts
Sources: Credit Agreement (Koppers Holdings Inc.), Credit Agreement (Koppers Holdings Inc.), Credit Agreement (Koppers Holdings Inc.)
Asset Sales. The Borrower will not, and nor will not it permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted another Subsidiary in compliance with Section 7.04(c)6.04) (each, a “Disposition” and the term or “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of (i) inventory in the ordinary course of business, (ii) used, obsolete, damaged, used, surplus or worn out propertyor surplus equipment or property in the ordinary course of business; and (iii) property no longer used or useful, whether now owned or hereafter acquiredeconomically practicable or commercially desirable to maintain, in the conduct of the business of the Borrower and Dispositions any Subsidiary (including by ceasing to enforce or allowing the lapse, abandonment or invalidation of non-core assets or propertydiscontinuing the use or maintenance of or putting into the public domain any intellectual property that is, including assets or propertyin the reasonable judgment of the Borrower, no longer used or useful, or economically practicable or commercially desirable to maintain, or in respect of which the Borrower determines in its reasonable business judgment that such action or inaction is desirable, in each case pursuant to this clause (iii), which has a Fair Market Value, individually or in the conduct aggregate, in an amount not to exceed $5,000,000 for the period of the core or principal business four consecutive fiscal quarters of the Borrower and its Restricted Subsidiaries most recently ended for which financial statements have been delivered (including allowing any registration or application for registration calculated at the time of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidatedsuch Disposition));
(b) Dispositions to the Borrower or any Subsidiary, provided that any such sales, transfers or dispositions from a Loan Party to a Subsidiary that is not a Loan Party or from the Borrower or a Subsidiary shall constitute Investments subject to Section 6.04;
(c) Dispositions of inventory accounts receivable in connection with the compromise, settlement or collection thereof consistent with past practice;
(d) to the extent constituting Dispositions, transactions permitted by Sections 6.02, 6.03, 6.04, 6.06 and 6.08;
(e) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(f) Dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Subsidiary;
(g) Dispositions of assets that are not permitted by any other paragraph of this Section 6.05, provided that the aggregate Fair Market Value represented by such assets during any period of four consecutive fiscal quarters is not greater than $10,000,000 for the period of four consecutive fiscal quarters of the Borrower most recently ended for which financial statements have been delivered (including Settlement Assetscalculated at the time of such Disposition);
(h) exchanges of property for similar replacement property for fair value;
(i) [reserved];
(j) [reserved];
(k) the sale or other Disposition of Permitted Investments;
(l) to the extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by the Borrower or any of the Subsidiaries that is not in contravention of Section 6.03(b);
(m) [reserved];
(n) the non-exclusive licensing or sublicensing of intellectual property in the ordinary course of business or consistent in accordance with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of businessindustry practice;
(co) Dispositions the unwinding of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;Swap Agreements permitted by Section 6.14; and
(dp) Dispositions the compromise, settlement, release or surrender of property to a contract, tort or other litigation claim, arbitration or other disputes. provided that all sales, transfers, leases and other dispositions permitted by clause (g) above shall be made for Fair Market Value and for at least 75% cash consideration (it being understood that the following shall constitute cash consideration: real estate, equipment or other operating assets used or useful in a Permitted Business received by the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartySubsidiaries as consideration (excluding stock, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 notes or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrowerother securities)) and any promissory note or after giving effect to such sales, transfers, leases and other non-cash consideration received dispositions permitted hereby the Borrower shall be in respect thereof is compliance with the Financial Performance Covenants on a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; (e) Dispositions permitted by Section 7.03, Investments permitted by Section 7.04, Restricted Payments permitted by Section 7.07 and Liens permitted by Section 7.02;pro forma basis.
Appears in 6 contracts
Sources: Credit Agreement (Tempus AI, Inc.), Credit Agreement (Tempus AI, Inc.), Credit Agreement (Tempus AI, Inc.)
Asset Sales. The Neither Holdings nor the Borrower will, nor will not, and will not they permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any assetasset (in one transaction or in a series of related transactions and whether effected pursuant to a Division or otherwise), including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Holdings, the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of Holdings, the Borrower and its the Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, abandoned or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or property, (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement propertyproperty or (iii) such Disposition is allowable under Section 1031 of the Code, or any comparable or successor provision is for like property (and any boot thereon) and for use in a Similar Business;
(d) Dispositions of property to Holdings, the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 and 6.08, Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e);
(f) any issuance, sale or pledge of Equity Interests in, or Indebtedness, or other securities of, an Unrestricted Subsidiary;
(g) Dispositions of Permitted Investments;
(h) Dispositions of (A) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) and (B) receivables and related assets pursuant to any Permitted Receivables Financing;
(i) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and that do not materially interfere with the business of Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(k) Dispositions of property to Persons other than Holdings, the Borrower or any of the Restricted Subsidiaries (including (x) the sale or issuance of Equity Interests in a Restricted Subsidiary and (y) any Sale Leaseback) not otherwise permitted under this Section 6.05; provided that (i) such Disposition is made for Fair Market Value and (ii) except in the case of a Permitted Asset Swap, with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of the greater of (x) $7,500,000 and (y) 5% of Consolidated EBITDA for the most recently ended Test Period for all transactions permitted pursuant to this clause (k) since the Effective Date, Holdings, the Borrower or a Restricted Subsidiary shall receive not less than (I) 75% of such consideration in the form of cash or Permitted Investments or (II) 50% of such consideration in the form of cash or Permitted Investments; provided, however, that for the purposes of this clause (ii), (A) the greater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of the Borrower (or a Parent Entity) provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of Borrower (or Parent Entity) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by Borrower) of Holdings, the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Loan Document Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases Holdings, the Borrower or such Restricted Subsidiary from such liabilities, (B) any securities received by Holdings, the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by Holdings, the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (l) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of 5% of Consolidated Total Assets for the most recently ended Test Period as of the time of receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of Holdings, the Borrower and the Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(n) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(o) Dispositions of property for Fair Market Value not otherwise permitted under this Section 6.05 having an aggregate purchase price not to exceed the greater of (A) $22,000,000 and (B) 15% of Consolidated EBITDA for the most recently ended Test Period at the time of such Disposition;
(p) the sale or discount (with or without recourse) (including by way of assignment or participation) of other receivables (including, without limitation, trade and lease receivables) and related assets in connection with a Permitted Receivables Financing;
(q) the unwinding of any Swap Obligations or Cash Management Obligations; and
(r) Holdings and its Subsidiaries may undertake or consummate any IPO Reorganization Transactions or any transaction related thereto or contemplated thereby.
Appears in 6 contracts
Sources: First Lien Credit Agreement (First Advantage Corp), First Lien Credit Agreement (First Advantage Corp), First Lien Credit Agreement (First Advantage Corp)
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
(a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, and Dispositions of non-core assets or property, (including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted Subsidiaries Subsidiaries) (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.07 and Liens permitted by Section 7.026.02;
(f) Dispositions of property acquired by the Borrower or any of the Restricted Subsidiaries pursuant to sale-leaseback transactions;
(g) Dispositions of Permitted Investments;
(h) Dispositions or forgiveness of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof (including sales to factors or other third parties);
(i) leases, subleases, service agreements, product sales, licenses or sublicenses (including licenses and sublicenses of Intellectual Property), in each case that do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events;
(k) Dispositions of property to Persons other than Restricted Subsidiaries (including the sale or issuance of Equity Interests of a Restricted Subsidiary) for fair market value (as determined by a Responsible Officer of the Borrower in good faith) not otherwise permitted under this Section 6.05; provided that with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of $50,000,000, the Borrower or any Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that solely for the purposes of this clause (k), (A) any liabilities (as shown on the most recent balance sheet of the Borrower or such Restricted Subsidiary or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities, notes or other obligations or assets received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within one hundred and eighty (180) days following the closing of the applicable Disposition, shall be deemed to be cash, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to the Borrower or its Restricted Subsidiaries), to the extent that the Borrower and all of the Restricted Subsidiaries (to the extent previously liable thereunder) are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition, shall be deemed to be cash and (D) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate fair market value (as determined by a Responsible Officer of the Borrower in good faith), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess of $50,000,000 at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value (as determined in good faith by the Borrower) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment not prohibited hereunder, which assets are not used or useful to the core or principal business of the Borrower and its Restricted Subsidiaries and/or (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(n) any Disposition of accounts receivable, Securitization Assets, any participations thereof, or related assets in connection with or any Qualified Securitization Facility;
(o) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement; and
(p) any Disposition of the Equity Interests of any Immaterial Subsidiary or Unrestricted Subsidiary.
Appears in 4 contracts
Sources: Term Loan Credit Agreement (Installed Building Products, Inc.), Credit Agreement (Builders FirstSource, Inc.), Credit Agreement (Builders FirstSource, Inc.)
Asset Sales. The (a) Neither Holdings, Intermediate Holdings nor any Borrower will, nor will not, and will not they permit any Restricted Subsidiary or Intermediate Holdings, to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Holdings, Intermediate Holdings, a Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(ab) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of Holdings, any Intermediate Holdings, the Borrower Borrowers and its the Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, abandoned or be invalidated);
(bc) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(cd) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or property, (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement propertyproperty or (iii) such Disposition is allowable under Section 1031 of the Code, or any comparable or successor provision is for like property (and any boot thereon) and for use in a Similar Business;
(de) Dispositions of property to the Holdings, a Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04;
(ef) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 and 6.08, Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(f);
(g) any issuance, sale or pledge of Equity Interests in, or Indebtedness, or other securities of, an Unrestricted Subsidiary;
(h) Dispositions of Permitted Investments;
(i) Dispositions of (A) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) and (B) receivables and related assets pursuant to any Permitted Receivables Financing;
(j) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and that do not materially interfere with the business of Holdings, the Borrowers and the Restricted Subsidiaries, taken as a whole;
(k) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(l) Dispositions of property to Persons other than Holdings, any Borrower or any of the Restricted Subsidiaries (including (x) the sale or issuance of Equity Interests in a Restricted Subsidiary and (y) any Sale Leaseback) not otherwise permitted under this Section 6.05; provided that (i) such Disposition is made for Fair Market Value and (ii) except in the case of a Permitted Asset Swap, either (A) with respect to any Disposition pursuant to this clause (l) for a purchase price in excess of the greater of (x) $7.5 million and (y) 3.5% of Consolidated EBITDA for the most recently ended Test Period for any transaction or series of related transactions, Holdings, a Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments or (B) with respect to any Disposition pursuant to this clause (l) for a purchase price in excess of the greater of (x) $7.5 million and (y) 3.5% of Consolidated EBITDA for the most recently ended Test Period for any transaction or series of related transactions, Holdings, a Borrower or a Restricted Subsidiary shall receive not less than 50% of such consideration in the form of cash or Permitted Investments; provided, however, that for the purposes of this clause (ii), (A) the greater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of Holdings (or a Parent Entity) provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of Holdings (or Parent Entity) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by Holdings) of Holdings, such Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Loan Document Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases Holdings, such Borrower or such Restricted Subsidiary from such liabilities, (B) any securities received by Holdings, any Intermediate Holdings, such Borrower or such Restricted Subsidiary from such transferee that are converted by Holdings, such Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by Holdings, any Intermediate Holdings, such Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of 5% of Consolidated Total Assets for the most recently ended Test Period as of the time of receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(m) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(n) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of Holdings, the Borrowers and the Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(o) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(p) Dispositions of property for Fair Market Value not otherwise permitted under this Section 6.05 having an aggregate purchase price not to exceed $15.0 millionthe greater of (A) $22.5 million and (B) 5.0% of Consolidated EBITDA for the most recently ended Test Period at the time of such Disposition;
(q) the sale or discount (with or without recourse) (including by way of assignment or participation) of other receivables (including, without limitation, trade and lease receivables) and related assets in connection with a Permitted Receivables Financing;
(r) the unwinding of any Swap Obligations or Cash Management Obligations; and
(s) Holdings, Intermediate Holdings and its Subsidiaries may undertake or consummate any IPO Reorganization Transactions or any transaction related thereto or contemplated thereby.
Appears in 3 contracts
Sources: Credit Agreement (New Whale Inc.), Credit Agreement (Endeavor Group Holdings, Inc.), Credit Agreement (Endeavor Group Holdings, Inc.)
Asset Sales. The Borrower will not, and nor will not it permit any of its Restricted Subsidiary to, Subsidiaries to (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest owned by it and including any disposition of property to a Delaware Divided LLC pursuant to a Delaware LLC Division or (ii) permit any of its Restricted Subsidiary Subsidiaries to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, non-core, surplus, damaged, usedunnecessary, surplus unsuitable or worn out propertyproperty or equipment, inventory or other assets, whether now owned or hereafter acquired, in the ordinary course of business or consistent with industry or past practice and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, abandoned or be invalidated);
(b) Dispositions the lapse, abandonment or invalidation of inventory intellectual property rights that are not material to the conduct of the Borrower and other assets (including Settlement Assets) in the ordinary course of business its Restricted Subsidiaries, taken as a whole, or consistent with past practice that are no longer used or held for sale useful or no longer used economically practicable or commercially reasonable to maintain, in each case as reasonably determined by the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of businessBorrower;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or property, (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement propertyproperty or (iii) such Disposition is allowable under Section 1031 of the Code, or any comparable or successor provision is for like property (and any boot thereon) and for use in a Similar Business;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 and 6.08, Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e);
(f) any issuance, disposition or pledge of Equity Interests in, or Indebtedness, or other securities of, an Unrestricted Subsidiary (or a Restricted Subsidiary which owns an Unrestricted Subsidiary so long as such Restricted Subsidiary owns no assets other than the Equity Interests of such Unrestricted Subsidiary);
(g) Dispositions of Permitted Investments;
(h) Dispositions or discounts without recourse (including by way of assignment or participation) of (A) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) and (B) receivables and related assets pursuant to any Permitted Receivables Financing;
(i) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and that do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to any Casualty Event upon receipt of the Net Proceeds of such Casualty Event;
(k) Dispositions of property to Persons other than the Borrower or any of its Restricted Subsidiaries (including (x) the sale or issuance of Equity Interests in a Restricted Subsidiary and (y) any Sale Leaseback) not otherwise permitted under this Section 6.05; provided that (i) such Disposition is made for Fair Market Value and (ii) except in the case of a Permitted Asset Swap, with respect to any Disposition or series of related Dispositions pursuant to this clause (k) for a purchase price in excess of the greater of $300,000,000 and 33.0% of Consolidated EBITDA for the most recently ended Test Period, for all transactions permitted pursuant to this clause (k) since the Effective Date, the Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that for the purposes of this clause (ii), (A) the greater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of the Borrower provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of the Borrower or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Loan Document Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases the Borrower or such Restricted Subsidiary from such liabilities, (B) any securities received by the Borrower, the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess (at the date of agreement for the related Disposition) of the greater of $330,000,000 and 5.0% of Consolidated Total Assets of the Borrower and its Restricted Subsidiaries, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time of contractually agreeing to such Disposition and without giving effect to subsequent changes in value, shall be deemed to be cash;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of the Borrower and its Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority or any other Governmental Authority or otherwise necessary or advisable to consummate any acquisition (including any Permitted Acquisition) after the Effective Date, as determined by the Borrower;
(n) transfers of condemned property, asset, Equity Interests or Indebtedness as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property, asset, Equity Interests or Indebtedness arising from foreclosure, condemnation, expropriation, forced dispositions, or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(o) the sale or discount or disposition (with or without recourse) (including by way of assignment or participation) of receivables (including, without limitation, trade and lease receivables) and related assets in connection with a Permitted Receivables Financing;
(p) the unwinding of any Swap Obligations or Cash Management Obligations;
(q) any disposition of property, assets or Equity Interests in connection with the College Sports Transaction;
(r) any sale, transfer or other disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC; provided that the Borrower has complied with Section 5.11 to the extent applicable;
(s) any disposition of property, assets, Equity Interests or Indebtedness that was acquired with Excluded Contributions if the proceeds of such disposition are used to make a Restricted Payment pursuant to Section 6.08(a)(xx);
(t) the Separation Transaction, including the Disposition or transfer of the Non-Television Entity Notes in connection therewith; and
(u) the Borrower or any of its Subsidiaries may dispose of assets (including by way of an exchange for assets of equal or greater value, as determined in good faith by the Board of Directors of the Borrower or such Subsidiary), including assets relating to any Owned Station that is a television broadcasting station or a radio broadcasting station (or the Capital Stock of the Subsidiary of the Borrower that owns such assets if such Subsidiary does not own property related to any other Owned Station not included in such Disposition), provided that:
(i) both immediately prior to such Disposition and, after giving effect thereto, no Default shall have occurred and be continuing;
(ii) such Disposition is a sale to any Person for cash or in exchange for assets, in each case, in an amount not less than the fair market value of the assets being disposed of;
(iii) in the case of the Disposition (including an exchange) of assets relating to any Owned Station that is a television broadcasting station or a radio broadcasting station (or the Capital Stock of the Subsidiary of the Borrower that owns such assets if such Subsidiary does not own property related to any other Owned Station not included in such Disposition) and which are owned as of the Effective Date the Fair Market Value of such assets together with the Fair Market Value attributable to all other such assets sold or exchanged pursuant to this clause (iii) during any twelve month period since the Effective Date but excluding the Fair Market Value attributable to any assets sold or exchanged (1) as required by any Governmental Authority or (2) any Channel Sharing Agreement or the grant of a shared television broadcast license pursuant to 47 C.F.R. § 73.3700(b) and/or any other agreement related thereto shall not exceed the greater of $280,000,000 and 30.0% of Consolidated EBITDA; and
(iv) the Borrower shall have furnished to the Lenders such other information or documents relating to such Disposition as the Administrative Agent or any Lender or Lenders (through the Administrative Agent) shall have reasonably requested. To the extent any Collateral is Disposed of as expressly permitted by this Section 6.05 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent or the Collateral Agent, as applicable, shall take any actions deemed appropriate in order to effect the foregoing.
Appears in 3 contracts
Sources: Seventh Amendment to Seventh Amended and Restated Credit Agreement (Sinclair Broadcast Group, LLC), Credit Agreement (Sinclair Broadcast Group Inc), Credit Agreement (Sinclair Broadcast Group Inc)
Asset Sales. The Borrower Holdings will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower Holdings or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
(a) Dispositions of (i) obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, acquired and Dispositions of non-core assets or property, including assets or property, no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted Subsidiaries (ii) Intellectual Property (including by ceasing to enforce, abandoning, allowing to lapse, terminate or to be invalidated, discontinuing the use or maintenance of or putting into the public domain, any registration or application for registration of any such Intellectual Property Property) that is no longer used or useful, useful or economically practicable to maintain, maintain or with respect to lapse, go abandoned, which Holdings determines in its reasonable business judgment such action or be invalidated)inaction is desirable in the conduct of the business;
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower Holdings or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan PartyParty (or, if the transferor is not a CFC Guarantor, then the transferee must be a Loan Party that is not a CFC Guarantor), (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan PartyParty (or a Disposition by a Loan Party (other than a CFC Guarantor) to a CFC Guarantor), such Disposition is for fair market value (as determined in good faith by the BorrowerHoldings) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party (or in a CFC Guarantor, as the case may be) in accordance with Section 7.04; 6.04;
(e) Dispositions permitted (other than by reference to this Section 6.05) by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.07 and Liens permitted by Section 7.026.02;
(f) [reserved];
(g) Dispositions of Permitted Investments;
(h) forgiveness of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof;
(i) leases, subleases, service agreements, product sales, licenses or sublicenses, in each case that do not materially interfere with the business of Holdings and the Restricted Subsidiaries, taken as a whole;
(j) non-exclusive licenses or sublicenses, or other similar grants of rights, to Intellectual Property in the ordinary course of business;
(k) transfers of property subject to Casualty Events;
(l) Dispositions of property not otherwise permitted under this Section 6.05 to Persons other than Holdings or any Restricted Subsidiary (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are Disposed of) for fair market value (as determined by a Responsible Officer of Holdings in good faith); provided that with respect to any Disposition pursuant to this clause (l) for a purchase price in excess of the greater of $10,000,000 and 1% of Consolidated EBITDA for the most recently ended Test Period as of the date of such Disposition, Holdings or such Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that solely for the purposes of this clause (l), (A) any liabilities (as shown on the most recent balance sheet of Holdings or such Restricted Subsidiary or in the footnotes thereto) of Holdings or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which Holdings, if applicable, and any applicable Restricted Subsidiary shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities, notes or other obligations or assets received by Holdings or such Restricted Subsidiary from such transferee that are converted by Holdings or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within one hundred and 180 days following the closing of the applicable Disposition, shall be deemed to be cash, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to Holdings or the Restricted Subsidiaries and other than Indebtedness that is by its terms subordinated in right of payment to the Loan Document Obligations), to the extent that Holdings, if applicable, and any applicable Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition, shall be deemed to be cash and (D) any Designated Non-Cash Consideration received by Holdings or such Restricted Subsidiary in respect of such Disposition having an aggregate fair market value (as determined by a Responsible Officer of Holdings in good faith), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (l) that is at that time outstanding, not in excess of the greater of $25,000,000 and 2.5% of Consolidated EBITDA for the most recently ended Test Period, in each case at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value (as determined in good faith by a Responsible Officer of Holdings) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(m) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(n) Dispositions of any assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are Disposed of) (i) acquired in connection with any Permitted Acquisition or other Investment not prohibited hereunder, which assets are not used or useful to the core or principal business of Holdings and the Restricted Subsidiaries and/or (ii) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition; provided that, with respect to any such Permitted Acquisition or other Investment, the aggregate fair market value of the assets Disposed of in reliance on this clause (n) shall not exceed 20% of the aggregate consideration paid by Holdings and its Restricted Subsidiaries in respect of such Permitted Acquisition or other Investment;
(o) any Disposition of Securitization Assets in connection with or any Qualified Securitization Facility;
(p) [reserved]; and
(q) any Disposition of the Equity Interests of any Unrestricted Subsidiary.
Appears in 3 contracts
Sources: Second Amendment (Graftech International LTD), Credit Agreement (Graftech International LTD), Credit Agreement (Graftech International LTD)
Asset Sales. The (a) Neither Holdings, Intermediate Holdings nor any Borrower will, nor will not, and will not they permit any Restricted Subsidiary or Intermediate Holdings, to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Holdings, Intermediate Holdings, a Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(ab) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of Holdings, any Intermediate Holdings, the Borrower Borrowers and its the Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, abandoned or be invalidated);
(bc) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(cd) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or property, (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement propertyproperty or (iii) such Disposition is allowable under Section 1031 of the Code, or any comparable or successor provision is for like property (and any boot thereon) and for use in a Similar Business;
(de) Dispositions of property to the Holdings, a Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04;
(ef) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 and 6.08, Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(f);
(g) any issuance, sale or pledge of Equity Interests in, or Indebtedness, or other securities of, an Unrestricted Subsidiary;
(h) Dispositions of Permitted Investments;
(i) Dispositions of (A) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) and (B) receivables and related assets pursuant to any Permitted Receivables Financing;
(j) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and that do not materially interfere with the business of Holdings, the Borrowers and the Restricted Subsidiaries, taken as a whole;
(k) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(l) Dispositions of property to Persons other than Holdings, any Borrower or any of the Restricted Subsidiaries (including (x) the sale or issuance of Equity Interests in a Restricted Subsidiary and (y) any Sale Leaseback) not otherwise permitted under this Section 6.05; provided that (i) such Disposition is made for Fair Market Value and (ii) except in the case of a Permitted Asset Swap, with respect to any Disposition pursuant to this clause (l) for a purchase price in excess of the greater of (x) $7.5 million and (y) 3.5% of Consolidated EBITDA for the most recently ended Test Period for any transaction or series of related transactions, Holdings, a Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that for the purposes of this clause (ii), (A) the greater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of Holdings (or a Parent Entity) provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of Holdings (or Parent Entity) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by Holdings) of Holdings, such Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Loan Document Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases Holdings, such Borrower or such Restricted Subsidiary from such liabilities, (B) any securities received by Holdings, any Intermediate Holdings, such Borrower or such Restricted Subsidiary from such transferee that are converted by Holdings, such Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by Holdings, any Intermediate Holdings, such Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of 5% of Consolidated Total Assets for the most recently ended Test Period as of the time of receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(m) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(n) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of Holdings, the Borrowers and the Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(o) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(p) Dispositions of property for Fair Market Value not otherwise permitted under this Section 6.05 having an aggregate purchase price not to exceed $15.0 million;
(q) the sale or discount (with or without recourse) (including by way of assignment or participation) of other receivables (including, without limitation, trade and lease receivables) and related assets in connection with a Permitted Receivables Financing;
(r) the unwinding of any Swap Obligations or Cash Management Obligations; and
(s) Holdings, Intermediate Holdings and its Subsidiaries may undertake or consummate any IPO Reorganization Transactions or any transaction related thereto or contemplated thereby.
Appears in 3 contracts
Sources: First Lien Credit Agreement (New Whale Inc.), First Lien Credit Agreement (Endeavor Group Holdings, Inc.), First Lien Credit Agreement (Endeavor Group Holdings, Inc.)
Asset Sales. The Neither Holdings, Intermediate Holdings nor any Borrower will, nor will not, and will not they permit any Restricted Subsidiary or Intermediate Parent to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Holdings, Intermediate Holdings, a Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of Holdings, any Intermediate Parent, Intermediate Holdings, the Borrower Borrowers and its the Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, abandoned or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or property, (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement propertyproperty or (iii) such Disposition is allowable under Section 1031 of the Code, or any comparable or successor provision is for like property (and any boot thereon) and for use in a Similar Business;
(d) Dispositions of property to the Intermediate Holdings, a Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 and 6.08, Liens permitted by Section 7.026.02 and issuances of Equity Interests permitted by Section 6.09(xvii), in each case, other than by reference to this Section 6.05(e);
(f) any issuance, sale or pledge of Equity Interests in, or Indebtedness, or other securities of, an Unrestricted Subsidiary;
(g) Dispositions of Permitted Investments;
(h) Dispositions of (A) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties), (B) receivables and related assets pursuant to any Permitted Receivables Financing and (C) any Entertainment Assets in connection with any Permitted Film/TV Business or Permitted Film/TV Financing;
(i) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and that do not materially interfere with the business of Holdings, Intermediate Holdings, the Borrowers and the Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(k) Dispositions of property to Persons other than Holdings, Intermediate Holdings, any Borrower or any of the Restricted Subsidiaries (including (x) the sale or issuance of Equity Interests in a Restricted Subsidiary and (y) any Sale Leaseback) not otherwise permitted under this Section 6.05; provided that (i) such Disposition is made for Fair Market Value and (ii) except in the case of a Permitted Asset Swap, either (A) with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of the greater of (x) $27,500,000 and (y) 5% of Consolidated EBITDA for the most recently ended Test Period for all transactions permitted pursuant to this clause (k) since the Effective Date, Holdings, Intermediate Holdings, a Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments or (B) with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of the greater of (x) $27,500,000 and (y) 5% of Consolidated EBITDA for the most recently ended Test Period for all transactions permitted pursuant to this clause (k) since the Effective Date, Holdings, Intermediate Holdings, a Borrower or a Restricted Subsidiary shall receive not less than 50% of such consideration in the form of cash or cash equivalents; provided, however, that for the purposes of this clause (ii), (A) the greater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of Holdings (or a Parent Entity) provided hereunder or in the footnotes thereto, or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of Holdings (or Parent Entity) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by Holdings) of Holdings, Intermediate Holdings, such Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Loan Document Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases Holdings, Intermediate Holdings, such Borrower or such Restricted Subsidiary from such liabilities, (B) any securities received by Holdings, any Intermediate Parent, Intermediate Holdings, such Borrower or such Restricted Subsidiary from such transferee that are converted by Holdings, such Intermediate Parent, Intermediate Holdings, such Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by Holdings, any Intermediate Parent, Intermediate Holdings, such Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of 6% of Consolidated Total Assets for the most recently ended Test Period as of the time of receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of Intermediate Holdings, the Borrowers and the Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(n) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(o) Dispositions of property for Fair Market Value not otherwise permitted under this Section 6.05 having an aggregate purchase price not to exceed the greater of (A) $85,000,000 and (B) 15% of Consolidated EBITDA for the most recently ended Test Period at the time of such Disposition;
(p) the unwinding of any non-speculative Swap Obligations or Cash Management Obligations; and
(q) Holdings and its Subsidiaries may undertake or consummate any IPO Reorganization Transactions or any transaction related thereto or contemplated thereby.
Appears in 3 contracts
Sources: Credit Agreement (Endeavor Group Holdings, Inc.), Credit Agreement (Endeavor Group Holdings, Inc.), Credit Agreement (Endeavor Group Holdings, Inc.)
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) ), whether effected pursuant to a Division or otherwise (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
(a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, and Dispositions of non-core assets or property, (including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted Subsidiaries Subsidiaries) (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.07 and Liens permitted by Section 7.026.02;
(f) Dispositions of property acquired by the Borrower or any of the Restricted Subsidiaries pursuant to sale-leaseback transactions;
(g) Dispositions of Permitted Investments;
(h) Dispositions or forgiveness of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof (including sales to factors or other third parties);
(i) leases, subleases, service agreements, product sales, licenses or sublicenses (including licenses and sublicenses of Intellectual Property), in each case that do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events;
(k) Dispositions of property to Persons other than Restricted Subsidiaries (including the sale or issuance of Equity Interests of a Restricted Subsidiary) for fair market value (as determined by a Responsible Officer of the Borrower in good faith) not otherwise permitted under this Section 6.05; provided that with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of $50,000,000, the Borrower or any Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that solely for the purposes of this clause (k), (A) any liabilities (as shown on the most recent balance sheet of the Borrower or such Restricted Subsidiary or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities, notes or other obligations or assets received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within one hundred and eighty (180) days following the closing of the applicable Disposition, shall be deemed to be cash, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to the Borrower or its Restricted Subsidiaries), to the extent that the Borrower and all of the Restricted Subsidiaries (to the extent previously liable thereunder) are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition, shall be deemed to be cash and (D) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate fair market value (as determined by a Responsible Officer of the Borrower in good faith), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess of $50,000,000 at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value (as determined in good faith by the Borrower) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment not prohibited hereunder, which assets are not used or useful to the core or principal business of the Borrower and its Restricted Subsidiaries and/or (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(n) any Disposition of accounts receivable, Securitization Assets, any participations thereof, or related assets in connection with or any Qualified Securitization Facility;
(o) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement; and
(p) any Disposition of the Equity Interests of any Immaterial Subsidiary or Unrestricted Subsidiary.
Appears in 3 contracts
Sources: Term Loan Credit Agreement (Installed Building Products, Inc.), Term Loan Credit Agreement (Installed Building Products, Inc.), Restatement Agreement (Installed Building Products, Inc.)
Asset Sales. The Neither Holdings nor the Borrower will, nor will not, and will not they permit any Restricted Subsidiary or Intermediate Parent, to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest owned by it (including, in each case, any disposition of property to a Delaware Divided LLC pursuant to a Delaware LLC Division) or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals or other Persons to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Holdings, the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of Holdings, any Intermediate Parent, the Borrower and its the Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is either no longer used or useful, or no longer economically practicable to maintain, to lapse, go abandoned, or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04(c) or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04(c);
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 and 6.08, Liens permitted by Section 7.026.02 and issuances of Equity Interests permitted by Sections 6.09(iv) and 6.09(xi), in each case, other than by reference to this Section 6.05(e);
(f) Dispositions of Permitted Investments;
(g) Dispositions of accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties);
(h) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case that do not materially impair the business of Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole;
(i) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(j) Dispositions of property to Persons other than Restricted Subsidiaries (including (x) the sale or issuance of Equity Interests in a Restricted Subsidiary and (y) any Sale Leaseback) not otherwise permitted under this Section 6.05 (A) in an amount not to exceed $2,500,000, plus (B) additional amounts subject to the following: (i) such Disposition is made for Fair Market Value and (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $2,500,000 for any transaction or series of related transactions, the Borrower or a Restricted Subsidiary shall receive not less than 75.0% of such consideration in the form of cash or Permitted Investments; provided, however, that for the purposes of this clause (ii), (x) any liabilities (as shown on the most recent balance sheet of Holdings provided hereunder or in the footnotes thereto) of Holdings, the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which Holdings, any Intermediate Parent, the Borrower and the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (y) any securities received by Holdings, any Intermediate Parent, the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (z) any Designated Non-Cash Consideration received by Holdings, any Intermediate Parent, the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (j) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of 3% of Consolidated Total Assets for the most recently ended Test Period, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(k) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(l) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of any Intermediate Parent, the Borrower and the Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(m) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(n) Holdings and its Subsidiaries may undertake or consummate any IPO Reorganization Transactions or any transaction related thereto or contemplated thereby;
(o) Dispositions of Franchises in the ordinary course of business; and
(p) Dispositions of any European Wax Center location and related assets owned by the Borrower or any Restricted Subsidiary (and whether through the sale of capital of any person owning such assets) to any Franchisee, or Persons who become Franchisees as a result of such transaction, so long as no Event of Default shall exist or result therefrom. Notwithstanding the foregoing of this Section 6.05 or of Section 6.04 or 6.08, unless the Collateral Agent shall be granted a license of such Material Intellectual Property pursuant to and in accordance with Section 4.03 of the Collateral Agreement, the Borrower and its Subsidiaries shall not, without the consent of the Administrative Agent, Dispose of any Material Intellectual Property (including, without limitation, by way of Investment or dividend or other distribution) to any person other than a Loan Party other than (i) licenses or sublicenses of Material Intellectual Property in the ordinary course of business (including, without limitation, to Franchisees) and (ii) Dispositions of Material Intellectual Property that is either no longer used or useful, or no longer economically practicable to maintain, in each case, as determined by the Borrower in its reasonable business judgment.
Appears in 3 contracts
Sources: Credit Agreement (European Wax Center, Inc.), Incremental Assumption and Amendment (European Wax Center, Inc.), Incremental Assumption and Amendment (European Wax Center, Inc.)
Asset Sales. (i) The Borrower Company will not, and nor will not it permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest and any Intellectual Property owned by it or and (ii) the Company will not permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than (A) issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than Law, (B) issuing Equity Interests to the Borrower Company or a any Restricted Subsidiary in compliance with Section 7.04(c4.13(c), (C) any non-wholly-owned Restricted Subsidiary issuing Equity Interests of such Subsidiary to each owner of Equity Interests of such Subsidiary ratably based on their relative ownership interests and (D) issuing securities pursuant to management equity plan, stock option plan, phantom equity plan or any other management, employee benefit or other compensatory plan or agreement (and any successor plans or arrangements thereto)), in each case, having a fair market value (x) in excess of $500,000, in a single transaction or a series of related transactions or (y) in excess of $2,500,000 in any fiscal year (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower Company and its the Restricted Subsidiaries (including (i) allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidatedinvalidated or (ii) disposing of, discontinuing the use or maintenance of, abandoning, failing to pursue or otherwise allowing to lapse, expire, terminate or put into the public domain any of its Intellectual Property if the Company determines in its reasonable business judgment that such discontinuance is desirable in the conduct of its business);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of businessincluding on an intercompany basis);
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property property, or other assets of comparable or greater value or usefulness to the business or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower Company or a any Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Note Party, then either (i) the transferee must be a Loan Note Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Note Guarantor permitted by Section 7.04 4.13 and Section 4.28 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan PartyNote Guarantor, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party Note Guarantor permitted by Section 4.13 and Section 4.28; provided that the aggregate amount of such Dispositions made by Note Parties after the Issue Date in accordance Restricted Subsidiaries that are not Note Parties in reliance on this clause (d), together with the aggregate amount of (x) all other Investments made in and Dispositions made to Restricted Subsidiaries that are not Note Guarantors by Note Parties after the Issue Date and (y) all Investments and Dispositions made in reliance on Section 7.04; 4.28(ii), shall not exceed $7,500,000;
(e) Dispositions permitted by Section 7.034.12, Investments permitted by Section 7.044.13, Restricted Payments permitted by Section 7.07 4.17 and Liens permitted by Section 7.024.11, in each case, other than by reference to this Section 4.14(e);
(f) Dispositions of cash and/or Permitted Investments and/or other assets that were Permitted Investments when the relevant original Investment was made;
(g) the sale or discount, in each case without recourse, of past due accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not for financing purposes;
(h) leases, subleases, licenses or sublicenses, in each case in the ordinary course of business and that do not materially interfere with the business of the Company and the Restricted Subsidiaries, taken as a whole;
(i) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(j) Dispositions of property to Persons other than the Company or any Restricted Subsidiary (including the sale or issuance of Equity Interests in a Restricted Subsidiary) not otherwise permitted under this Section 4.14 in an aggregate amount during the term of this Indenture not to exceed $40,000,000; provided, that (i) such Disposition is made for Fair Market Value and (ii) the Company or any Restricted Subsidiary shall receive not less than 75.0% of such consideration in the form of cash or Permitted Investments (provided, that for purposes of this clause (ii), the following shall be deemed to be cash or Permitted Investments: (1) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto for which internal financial statements are available immediately preceding such date or, if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Company’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet in the good faith determination of the Company) of the Company or any of its Restricted Subsidiaries (other than liabilities that are by their terms subordinated to the Notes Obligations) that are extinguished in connection with the transactions relating to such Disposition, or that are assumed by the transferee, in each case, pursuant to an agreement that releases or indemnifies the Company and/or its applicable Restricted Subsidiaries, as the case may be, from further liability and (2) any notes or other obligations or other securities or assets received by the Company or any of its Restricted Subsidiaries from such transferee that are converted by the Company or such Restricted Subsidiary into cash or cash equivalents, or by their terms are required to be satisfied for cash or Permitted Investments (to the extent of the cash or Permitted Investments received), in each case, within 60 days of the receipt thereof); provided, further, that the Net Proceeds thereof shall be applied in accordance with Section 2.11(d) of the Credit Agreement;
(k) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in, joint venture agreements and similar binding arrangements;
(l) [reserved];
(m) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(n) [reserved];
(o) [reserved];
(p) [reserved]; and
(q) any merger, amalgamation, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or, subject to the consent of the Required Holders (such consent not to be unreasonably withheld, conditioned or delayed; provided, that it is acknowledged and agreed that it shall not be unreasonable to withhold consent to any such transaction that will have a material adverse impact on the Note Guarantees or the Collateral), any other jurisdiction.; and
(r) Dispositions of customer accounts receivable in connection with a Vendor Financing Program.
Appears in 2 contracts
Sources: Supplemental Indenture (Invacare Corp), Supplemental Indenture (Invacare Corp)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not any Loan Party permit any Restricted Subsidiary its respective Subsidiaries to, (i) voluntarily sell, transfer, lease or otherwise dispose Dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning)it, except:
(a) Dispositions of (i) obsolete, damagednegligible, usedworn out, used or surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, (ii) property (including assets or property, any leasehold property interest) that is no longer (x) economically practical in its business, (y) commercially desirable or commercially reasonable to maintain or (z) used or useful, or economically practicable to maintain, useful in the conduct of the core or principal business of the Borrower and or any of its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated)Subsidiaries;
(b) Dispositions of inventory assets from one Loan Party to another Loan Party;
(c) Dispositions of Accounts (excluding sales or dispositions in a factoring arrangement) in connection with the compromise, settlement or collection thereof;
(d) Dispositions of cash and Permitted Investments in the ordinary course of business;
(e) Dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Subsidiary;
(f) Dispositions of assets by any Subsidiary that is not a Loan Party to a Loan Party or to a Subsidiary that is not a Loan Party;
(including Settlement Assetsg) Dispositions constituting Liens permitted under Section 6.02, Dispositions permitted underSection 6.03, Investments permitted under Section 6.04 or Restricted Payments permitted under Section 6.07;
(h) Dispositions of Intellectual Property (i) that is, in the reasonable judgment of the Borrower, no longer economically practicable to maintain or useful or material to in the conduct of the business of the Borrower and the Subsidiaries, taken as a whole, (ii) in the ordinary course of business, or (iii) to a third party where such Intellectual Property was developed in connection with any commercial arrangement that is entered into in the ordinary course of business by a Loan Party or consistent Subsidiary thereof with past practice such third party (including any such co- or joint-development or research agreements) and pursuant to such commercial arrangement (x) the Loan Party or Subsidiary and such third party agree (which agreement was made in their respective reasonable business judgment) that such Intellectual Property will be jointly-owned by the Loan Party or Subsidiary and such third party, (y) such Intellectual Property is related to or an improvement, derivative, or the like of such third party’s or any of its Affiliates’ pre-existing or background Intellectual Property, or (z) as between such third party and such Loan Party or Subsidiary, such Intellectual Property primarily relates to the business of such third party and its Affiliates;
(i) Dispositions of non-core assets acquired in a Permitted Acquisition or Dispositions required to obtain antitrust approval of a Permitted Acquisition or other Investment;
(j) licenses or sublicenses of Intellectual Property rights granted by Borrower or its Subsidiaries in the ordinary course of business (or in connection with a commercial agreement entered into in the ordinary course of business) or not interfering in any material respect with the ordinary conduct of the business of the Borrower or such Subsidiary;
(k) [intentionally omitted];
(l) Dispositions of assets that are not permitted by any other clause of this Section 6.05, provided that the aggregate fair market value of all assets Disposed of in reliance upon this paragraph (l) shall not exceed $3,000,000 in any fiscal year; provided that, all Dispositions pursuant to Section 6.05(l) shall be made for fair value and at least 75% of the consideration from such Disposition received by any Loan Party or Subsidiary, as applicable, shall be in the form of cash or Permitted Investments;
(m) [intentionally omitted];
(n) sales, transfers or other Dispositions of Investments in joint ventures permitted under Section 6.04(r) to the extent required by, or made pursuant to customary buy/sell arrangements between, the parties set forth in joint venture arrangements and similar binding agreements (and not included in such joint venture arrangements and similar binding agreements in contemplation of such sale, transfer or other Disposition);
(o) Dispositions of assets, including inventory and goods held for sale or no longer used sale, in the ordinary course of business and immaterial assets (considered in the aggregate) including termination of leases and licenses in the ordinary course of business, and a voluntary or mandatory recall of any product);
(cp) Dispositions of property pursuant to sale and leaseback transactions, including those contemplated on the Effective Date and included on Schedule 6.05;
(q) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds the proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(dr) Dispositions of property assets not constituting Collateral in an aggregate amount not to exceed $15,000,000 in any fiscal year;
(s) the Borrower and any Subsidiary may (i) convert any intercompany Indebtedness to Equity Interests otherwise permitted hereunder, (ii) discount, write off, forgive or cancel any intercompany Indebtedness or other obligation owing by the Borrower or any other Loan Party to a Restricted Subsidiary; provided Subsidiary that if the transferor is not, in such a transaction is each case, a Loan Party, then either (i) the transferee must be a Party or to another Loan Party, (iiiii) settle, discount, write-off, forgive or cancel any Indebtedness owing by any present or former consultants, managers, directors, officers, employees of the Borrower or any Subsidiary or any of their successors or assigns, in the ordinary course of business, or (iv) surrender or waive contractual rights and settle, release, surrender or waive contractual or litigation claims, in the case of clause (iv), in the ordinary course of business;
(t) to the extent constituting an Investmentallowable under Section 1031 of the Code, such Investment must be a permitted Investment or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Restricted Subsidiary that is not a Loan Party similar business; and
(u) any swap of assets in accordance with Section 7.04 exchange for services or (iii) other assets in the ordinary course of business of comparable or greater value or usefulness to the extent constituting business of the Borrower and its Subsidiaries as a Disposition to a Restricted Subsidiary that is not a Loan Partywhole, such Disposition is for fair market value (as determined in good faith by the management of the Borrower) , in an aggregate amount not to exceed $15,000,000. Notwithstanding any other provision contained herein, for all purposes of this Agreement and any promissory note the other Loan Documents, all licenses, sublicenses, or other non-cash consideration received rights granted by Borrower or any of its Subsidiaries prior to the date hereof in respect thereof is connection with any Intellectual Property Rights (together with any other rights or obligations (including sales, assignments, conveyances, transfers, licenses, sublicenses, or other dispositions) (x) granted in connection with the foregoing prior to the date hereof or (y) required to be granted, or otherwise exercisable in connection with, the foregoing prior to or following the date hereof) shall be deemed, as applicable, a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Disposition pursuant to this Section 7.04; (e) Dispositions permitted by Section 7.03, Investments permitted by Section 7.04, Restricted Payments permitted by Section 7.07 6.05 and Liens permitted by Section 7.02;Permitted Liens.
Appears in 2 contracts
Sources: Credit Agreement (Firefly Aerospace Inc.), Credit Agreement (Firefly Aerospace Inc.)
Asset Sales. (i) The Borrower Company will not, and nor will not it permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest and any Intellectual Property owned by it or and (ii) the Company will not permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than (A) issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than Law, (B) issuing Equity Interests to the Borrower Company or a any Restricted Subsidiary in compliance with Section 7.04(c4.13(c), (C) any non-wholly-owned Restricted Subsidiary issuing Equity Interests of such Subsidiary to each owner of Equity Interests of such Subsidiary ratably based on their relative ownership interests and (D) issuing securities pursuant to management equity plan, stock option plan, phantom equity plan or any other management, employee benefit or other compensatory plan or agreement (and any successor plans or arrangements thereto)), in each case, having a fair market value (x) in excess of $500,000, in a single transaction or a series of related transactions or (y) in excess of $2,500,000 in any fiscal year (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower Company and its the Restricted Subsidiaries (including (i) allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidatedinvalidated or (ii) disposing of, discontinuing the use or maintenance of, abandoning, failing to pursue or otherwise allowing to lapse, expire, terminate or put into the public domain any of its Intellectual Property if the Company determines in its reasonable business judgment that such discontinuance is desirable in the conduct of its business);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of businessincluding on an intercompany basis);
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property property, or other assets of comparable or greater value or usefulness to the business or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower Company or a any Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Note Party, then either (i) the transferee must be a Loan Note Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Note Guarantor permitted by Section 7.04 4.13 and Section 4.28 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan PartyNote Guarantor, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party Note Guarantor permitted by Section 4.13 and Section 4.28; provided that the aggregate amount of such Dispositions made by Note Parties after the Issue Date in accordance Restricted Subsidiaries that are not Note Parties in reliance on this clause (d), together with the aggregate amount of (x) all other Investments made in and Dispositions made to Restricted Subsidiaries that are not Note Guarantors by Note Parties after the Issue Date and (y) all Investments and Dispositions made in reliance on Section 7.04; 4.28(ii), shall not exceed $7,500,000;
(e) Dispositions permitted by Section 7.034.12, Investments permitted by Section 7.044.13, Restricted Payments permitted by Section 7.07 4.17 and Liens permitted by Section 7.024.11, in each case, other than by reference to this Section 4.14(e);
(f) Dispositions of cash and/or Permitted Investments and/or other assets that were Permitted Investments when the relevant original Investment was made;
(g) the sale or discount, in each case without recourse, of past due accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not for financing purposes;
(h) leases, subleases, licenses or sublicenses, in each case in the ordinary course of business and that do not materially interfere with the business of the Company and the Restricted Subsidiaries, taken as a whole;
(i) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(j) Dispositions of property to Persons other than the Company or any Restricted Subsidiary (including the sale or issuance of Equity Interests in a Restricted Subsidiary) not otherwise permitted under this Section 4.14 in an aggregate amount during the term of this Indenture not to exceed $40,000,000; provided, that (i) such Disposition is made for Fair Market Value and (ii) the Company or any Restricted Subsidiary shall receive not less than 75.0% of such consideration in the form of cash or Permitted Investments (provided, that for purposes of this clause (ii), the following shall be deemed to be cash or Permitted Investments: (1) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto for which internal financial statements are available immediately preceding such date or, if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Company’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet in the good faith determination of the Company) of the Company or any of its Restricted Subsidiaries (other than liabilities that are by their terms subordinated to the Notes Obligations) that are extinguished in connection with the transactions relating to such Disposition, or that are assumed by the transferee, in each case, pursuant to an agreement that releases or indemnifies the Company and/or its applicable Restricted Subsidiaries, as the case may be, from further liability and (2) any notes or other obligations or other securities or assets received by the Company or any of its Restricted Subsidiaries from such transferee that are converted by the Company or such Restricted Subsidiary into cash or cash equivalents, or by their terms are required to be satisfied for cash or Permitted Investments (to the extent of the cash or Permitted Investments received), in each case, within 60 days of the receipt thereof); provided, further, that the Net Proceeds thereof shall be applied in accordance with Section 2.11(d) of the Credit Agreement;
(k) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in, joint venture agreements and similar binding arrangements;
(l) [reserved];
(m) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(n) [reserved];
(o) [reserved];
(p) [reserved]; and
(q) any merger, amalgamation, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction. To the extent that any Collateral is Disposed of as expressly permitted by this Section 4.14 to any Person other than a Note Party, subject to the proviso set forth in clause (a) of the definition of Excluded Subsidiary with respect to any Disposition of less than 100% of the Equity Interests of a wholly-owned subsidiary, such Collateral shall be sold free and clear of the Liens created by the Notes Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Trustee and the Notes Collateral Agent, acting at the direction of the Required Holders, shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing, and shall be entitled to rely, without independent investigation on an Officer’s Certificate of the Company in connection with the foregoing (which shall be delivered to the Trustee and the Notes Collateral Agent upon request therefor).
Appears in 2 contracts
Sources: Indenture (Invacare Corp), Indenture (Invacare Corp)
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a any Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
(a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its any Restricted Subsidiaries Subsidiary (including by ceasing to enforce, abandoning, allowing any registration to lapse, terminate or application for registration be invalidated, discontinuing the use or maintenance of or putting into the public domain, any Intellectual Property that is is, in the reasonable judgment of the Borrower or the Restricted Subsidiaries, no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidatedin respect of which the Borrower or any Restricted Subsidiary determines in its reasonable business judgment that such action or inaction is desirable);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a any Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value Fair Market Value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.07 and Liens permitted by Section 7.026.02;
(f) Dispositions of property acquired by the Borrower or any of the Restricted Subsidiaries after the Effective Date pursuant to sale-leaseback transactions;
(g) Dispositions of Permitted Investments;
(h) Dispositions or forgiveness of accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties);
(i) leases, subleases, service agreements, product sales, licenses or sublicenses (including licenses and sublicenses of Intellectual Property), in each case that do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events;
(k) Dispositions of property to Persons other than Restricted Subsidiaries (including the sale or issuance of Equity Interests of a Restricted Subsidiary) for Fair Market Value (as determined by a Responsible Officer of the Borrower in good faith) not otherwise permitted under this Section 6.05; provided that with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of $200,000,000, the Borrower or such Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that solely for the purposes of this clause (k), (A) any liabilities (as shown on the most recent balance sheet of the Borrower or such Restricted Subsidiary or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the First Lien Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities, notes or other obligations or assets received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within one hundred and eighty (180) days following the closing of the applicable Disposition, shall be deemed to be cash, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to the Borrower or its Restricted Subsidiaries), to the extent that the Borrower and all of the Restricted Subsidiaries (to the extent previously liable thereunder) are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition, shall be deemed to be cash, (D) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value (as determined by a Responsible Officer of the Borrower in good faith), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess of $200,000,000 at the time of the receipt of such Designated Non-Cash Consideration, with the Fair Market Value (as determined by a Responsible Officer of the Borrower in good faith) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash and (E) at the time of and immediately after giving effect to such Disposition, no Default or Event of Default shall have occurred and be continuing; provided, that the Required Revolving Lenders may waive such requirement;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) any Disposition of the Equity Interests of any Immaterial Subsidiary or Unrestricted Subsidiary;
(n) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment not prohibited hereunder, which assets are not used or useful to the core or principal business of the Borrower and the Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(i) any Disposition of accounts receivable, Securitization Assets, any participations thereof, or related assets in connection with or any Qualified Securitization Facility, (ii) the sale or discount of inventory, accounts receivable or notes receivable in the ordinary course of business (including sales to factors or other third parties) or in connection with any supplier and/or customer financing or (iii) the conversion of accounts receivable to notes receivable;
(p) transfers of condemned real property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of real property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement; and
(q) non-exclusive licenses or sublicenses, or other similar grants of rights, to Intellectual Property in the ordinary course of business.
Appears in 2 contracts
Sources: Credit Agreement (Sotera Health Co), Credit Agreement (Sotera Health Topco, Inc.)
Asset Sales. The Borrower will not, and nor will not it permit any of its Restricted Subsidiary to, Subsidiaries to (i) voluntarily sell, transfer, lease lease, license or otherwise dispose (including any disposition of property or assets to a Divided Delaware LLC pursuant to a Delaware LLC Division) of any asset, including any Equity Interest owned by it it, or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than (A) issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than Law, (B) issuing Equity Interests to the Borrower or a any Restricted Subsidiary in compliance with Section 7.04(c6.04(c) and (C) any non-wholly-owned Restricted Subsidiary issuing Equity Interests of such Subsidiary to each owner of Equity Interests of such Subsidiary ratably based on their relative ownership interests), in each case, having a Fair Market Value, in a single transaction or a series of related transactions, as of the date of such transaction(s) exceeding (x) $1,000,000, individually or (y) $2,500,000, in the aggregate in any fiscal year (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, if made in good faith determination of the board of directors of the Borrower and/or in the ordinary course of business or consistent with past practice and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its the Restricted Subsidiaries (including (i) allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated)invalidated or (ii) disposing of, discontinuing the use or maintenance of, abandoning, failing to pursue or otherwise allowing to lapse, expire, terminate or put into the public domain any of its Intellectual Property) if the Borrower determines in its reasonable business judgment that such discontinuance is desirable in the conduct of its business and does not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of businessincluding on an intercompany basis);
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property property, or other assets of comparable or greater value or usefulness to the business or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a any Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan PartyParty (other than Holdings), (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04 (other than clause (x) thereof), Restricted Payments permitted by Section 7.07 6.08 and Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e);
(f) Dispositions of cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(A) sales, discounts of or forgiveness of customer delinquent notes or delinquent accounts receivable, notes receivable or other current assets in the ordinary course of business or consistent with industry practice or the conversion of delinquent accounts receivable to notes receivable or other dispositions of delinquent accounts receivable in connection with settlement, collection or compromise thereof and (B) Dispositions of Permitted Receivables Financing Assets pursuant to any Permitted Receivables Financing; provided that (x) the aggregate face amount of Permitted Receivables Financing Assets subject to a Disposition for a Permitted Receivables Financing shall not exceed, at the time of any such Disposition, $100,000,000 and (y) at the time of any such Disposition of Permitted Receivables Financing Assets, the Borrower and the Restricted Subsidiaries shall be in compliance, after giving pro forma effect to such Disposition or the use of proceeds thereof, with a Contract Asset Balance Coverage Ratio (determined excluding from the Contract Asset Balance Coverage Ratio, the Permitted Receivables Financing Assets so Disposed) that is no less than 2.00:1.00 as of the last day of the Test Period most recently ended on or prior to such date of such Disposition (measured as of the date such Disposition is made based upon the financial statements most recently delivered (or required to have been delivered) on or prior to such date pursuant to Section 5.01(a) or (b));
(h) leases, subleases, licenses or sublicenses, in each case in the ordinary course of business or consistent with past practice or that do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(i) transfers or other Dispositions of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(j) Dispositions of other assets or property (including the sale or issuance of Equity Interests in a Restricted Subsidiary) not otherwise permitted under this Section 6.05; provided that (i) such Disposition is made for Fair Market Value, (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of the greater of (x) $1,000,000 and (y) 2.5% of Consolidated Cash EBITDA for the Test Period most recently ended on or prior to the date of such Disposition based upon the financial statements most recently delivered (or required to have been delivered) on or prior to such date pursuant to Section 5.01(a) or (b), for any transaction or series of related transactions the Borrower or any Restricted Subsidiary shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (ii), (A) any liabilities (as shown on the most recent balance sheet of the Borrower provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that (1) are assumed by the transferee with respect to the applicable Disposition or (2) are otherwise cancelled or terminated in connection with the transaction with such transferee, and for which the Borrower and its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (j) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of the greater of (x) $1,000,000 and (y) 2.5% of Consolidated Total Assets for the Test Period most recently ended on or prior to the date of such Disposition (measured as of the date such Disposition is made based upon the financial statements most recently delivered (or required to have been delivered) on or prior to such date pursuant to Section 5.01(a) or (b)) (net of any Designated Non-Cash Consideration converted into cash or Cash Equivalents), with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash, and (iii) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(k) Dispositions of Investments in Joint Ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the Joint Venture parties set forth in, Joint Venture agreements and similar binding arrangements;
(l) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not core or principal to the business of the Borrower and the Restricted Subsidiaries and do not exceed 30% of the assets acquired pursuant to such Permitted Acquisition or other Investment or (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(m) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(n) Dispositions of assets that do not constitute Collateral (including Dispositions or issuance of Equity Interests in, Indebtedness of, other securities issued by, Unrestricted Subsidiaries) for Fair Market Value not in excess of the greater of (x) $3,000,000 and (y) 10.0% of Consolidated Total Assets for the Test Period most recently ended on or prior to the date of such Disposition (measured as of the date such Disposition is made based upon the financial statements most recently delivered (or required to have been delivered) on or prior to such date pursuant to Section 5.01(a) or (b));
(o) Dispositions in connection with the Transactions or any Tax Restructuring; provided that, after giving effect to any such Disposition in connection with any Tax Restructuring, the Guarantees of the Loans and the security interests of the Lenders in the Collateral, taken as a whole, would not be adversely impaired in any material respect;
(p) any Disposition of a Sale Leaseback;
(q) any merger, consolidation, amalgamation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(r) [reserved];
(s) each Loan Party and each of its Restricted Subsidiaries may surrender or waive contractual rights and settle or waive contractual or litigation claims in the ordinary course of business or consistent with past practice;
(t) the unwinding of any Swap Agreement pursuant to its terms;
(u) the nominal issuances of Equity Interests of Foreign Subsidiaries in an aggregate amount not to exceed 2.0% of all issued and outstanding Equity Interests of such Foreign Subsidiary on a fully-diluted basis; and
(v) Dispositions to effect the formation of any Subsidiary that is a Divided Delaware LLC; provided that upon formation of such Divided Delaware LLC, the Borrower has complied with Section 5.11 to the extent applicable. Notwithstanding anything herein to the contrary, in no event shall any Loan Party or any of its Restricted Subsidiaries contribute, sell, assign, transfer or otherwise dispose of any Permitted Receivables Facility Assets, including in connection with any factoring transaction, any receivables transaction, securitization transaction, any facilities or programs or other similar transactions relating to Permitted Receivables Facility Assets, other than pursuant to clause (g) above and any Permitted Receivables Facility Assets may not be disposed of and such disposal shall not otherwise be permitted pursuant to any other clause in this Section 6.05; provided that any bona fide Disposition of any Subsidiary, other minority investment, business unit or line of business by the Borrower or any Restricted Subsidiary to a third party (including to any Unrestricted Subsidiary or Joint Venture) and not made to effectuate any Permitted Receivables Financing shall be permitted under and subject to the terms of any applicable exception to this Section 6.05 notwithstanding that any such Subsidiary, other minority investment, business unit or line of Business may own Permitted Receivables Financing Assets. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.05 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing.
Appears in 2 contracts
Sources: Incremental Facility Agreement (GoHealth, Inc.), Incremental Facility Agreement (GoHealth, Inc.)
Asset Sales. The Borrower will notSell, and will not permit any Restricted Subsidiary tolease, (i) voluntarily sellassign, transfer, lease transfer or otherwise dispose of any assetproperty, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to except that the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), exceptfollowing shall be permitted:
(a) Dispositions (x) sales, transfers, leases, subleases and other dispositions of obsoleteinventory in the ordinary course of business, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, and Dispositions of non-core assets or property, including assets or property, property no longer used or usefuluseful in the business or worn out, obsolete, uneconomical, negligible or surplus property by any Group Member in the ordinary course of business, (y) the abandonment, allowance to lapse or other disposition of Intellectual Property that is, in the reasonable business judgment of the Borrower, immaterial or no longer economically practicable to maintainmaintain or (z) sales, transfers, leases, subleases and other dispositions of property by any Group Member (including Intellectual Property) that is, in the conduct reasonable business judgment of the core Borrower, immaterial or principal business of the Borrower and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated)useful in the business;
(b) Dispositions any sale, lease, assignment, transfer or disposition provided that (i) such sale, lease, assignment, transfer or disposition shall be for fair market value (as determined by the Borrower in good faith), and (ii) with respect to any aggregate consideration received in respect thereof in excess of inventory $2,000,000, at least 75% of the purchase price for all property subject to such sale, lease, assignment, transfer or disposition shall be paid in cash or Cash Equivalents (with assumed liabilities treated as cash and other Designated Noncash Consideration treated as cash so long as the total Designated Noncash Consideration outstanding at any time does not exceed the greater of $2,500,000 and 10% of Consolidated EBITDA for the most recently ended Test Period in the aggregate;
(c) (x) leases, assignments and subleases of real or personal property in the ordinary course of business and not interfering in any material respect with the ordinary conduct of business of the Group Members and (y) licenses and sublicenses of Intellectual Property otherwise permitted under Section 6.02;
(d) transactions in compliance with Section 6.04 (other than Section 6.04(a));
(e) Investments in compliance with Section 6.03, Liens in compliance with Section 6.02, Dividends in compliance with Section 6.06 and Restricted Debt Payments in compliance with Section 6.09;
(f) sales of any non-core assets (including Settlement Assetsi) acquired in connection with any Permitted Acquisitions or other Investments in compliance with Section 6.03 or (ii) to obtain the approval of an anti-trust authority to a Permitted Acquisition or other permitted Investment;
(g) sales, discounts, disposals or forgiveness of customer delinquent notes or accounts receivable (including, in all events, the disposition of delinquent accounts receivable pursuant to any factoring arrangement) in the ordinary course of business in connection with settlement, collection or consistent with past practice or held for sale or no longer used in the ordinary course compromise thereof;
(h) use of business cash and immaterial assets (considered in the aggregate) disposition of Cash Equivalents in the ordinary course of business;
(ci) Dispositions sales, transfers, leases and other dispositions of property to the extent that required by any Governmental Authority or otherwise required by any Requirements of Law;
(j) sales, transfers, leases and other dispositions (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan to any other Credit Party, (ii) to any Restricted Subsidiary that is not a Credit Party from another Restricted Subsidiary that is not a Credit Party, or (iii) to any of the extent constituting an InvestmentRestricted Subsidiaries that are not Credit Parties from a Credit Party, such Investment must be a permitted Investment so long as, in the case of this clause (iii), if the consideration received from a Restricted Subsidiary that is not a Loan Credit Party in accordance with Section 7.04 by a Credit Party is not below fair market value, such sale, transfer lease or other disposition does not have a material adverse impact on the value of the (y) Collateral granted to the Collateral Agent for the benefit of the Secured Parties or (iiiz) Guarantees in favor of the Secured Parties;
(k) sales, transfers, leases and other dispositions of accounts receivable in connection with the compromise, settlement or collection thereof in the ordinary course of business;
(l) sales, transfers, leases and other dispositions of property to the extent constituting a Disposition that such property constitutes an Investment permitted by Section 6.03(h) or another asset received as consideration for the disposition of any asset permitted by this Section 6.05;
(m) sales or disposition of immaterial Equity Interests to qualify directors where required by applicable Requirements of Law or to satisfy other similar Requirements of Law with respect to the ownership of Equity Interests;
(n) any concurrent purchase and sale or exchange of any asset used or useful in the business of the Borrower and the Restricted Subsidiaries or in any line of business permitted hereunder, or any combination of any such assets and cash or Cash Equivalents, between the Borrower or a Restricted Subsidiary on one hand and another person in the other;
(o) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of any Group Member;
(p) the sale or disposition of assets that is are not a Loan Party, such Disposition is for fair market value Collateral in an amount (as determined in good faith each case by the Borrowerfair market value of such assets at the time of disposition) not to exceed $4,375,000 plus, after June 30, 2020, an unlimited amount so long as, as of the Applicable Date of Determination and for the applicable Test Period, the Total Leverage Ratio, calculated on a Pro Forma Basis, does not exceed 5.75 to 1.00;
(q) [reserved];
(r) the disposition, unwinding or terminating of Hedging Agreements or the transactions contemplated thereby;
(s) other sales or dispositions in an amount not to exceed the greater of $1,125,000 and 3.75% of Consolidated EBITDA for the most recently ended Test Period per fiscal year;
(t) Sale Leaseback Transactions in an amount not to exceed the greater of $1,875,000 and 7.5% of Consolidated EBITDA for the most recently ended Test Period in the aggregate;
(u) the sale or disposition of Unrestricted Subsidiaries; and
(v) the surrender or waiver of contractual rights and settlements, releases or waivers of contractual or litigation claims in the ordinary course of business. To the extent the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any promissory note Collateral, or other non-cash consideration received in respect thereof any Collateral is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; (e) Dispositions sold as permitted by this Section 7.036.05, Investments permitted such Collateral (unless sold to a Credit Party) shall be sold automatically free and clear of the Liens created by Section 7.04the Security Documents, Restricted Payments permitted by Section 7.07 and Liens permitted by Section 7.02;and, at the request of Borrower, the Agents shall take all actions they reasonably deem appropriate in order to effect the foregoing.
Appears in 2 contracts
Sources: Credit Agreement (Jamf Holding Corp.), Credit Agreement (Juno Topco, Inc.)
Asset Sales. The Neither Holdings, Intermediate Holdings nor any Borrower will, nor will not, and will not they permit any Restricted Subsidiary or Intermediate Parent, to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Holdings, Intermediate Holdings, a Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of Holdings, any Intermediate Parent, Intermediate Holdings, the Borrower Borrowers and its the Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Intermediate Holdings, a Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 and 6.08, Liens permitted by Section 7.026.02 and issuances of Equity Interests permitted by Section 6.09(xiii), in each case, other than by reference to this Section 6.05(e);
(f) Dispositions of Permitted Investments;
(g) Dispositions of (A) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) and (B) receivables and related assets pursuant to any Permitted Receivables Financing;
(h) leases, subleases, licenses or sublicenses, in each case in the ordinary course of business and that do not materially interfere with the business of Holdings, Intermediate Holdings, the Borrowers and the Restricted Subsidiaries, taken as a whole;
(i) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(j) Dispositions of property to Persons other than Holdings, Intermediate Holdings, any Borrower or any of the Restricted Subsidiaries (including (x) the sale or issuance of Equity Interests in a Restricted Subsidiary and (y) any Sale Leaseback) not otherwise permitted under this Section 6.05; provided that (i) such Disposition is made for Fair Market Value and (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $10,000,000 for any transaction or series of related transactions, Intermediate Holdings, a Borrower or a Restricted Subsidiary shall receive not less than 75.0% of such consideration in the form of cash or Permitted Investments; provided, however, that for the purposes of this clause (ii), (A) any liabilities (as shown on the most recent balance sheet of Holdings provided hereunder or in the footnotes thereto) of Intermediate Holdings, such Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which Holdings, any Intermediate Parent, Intermediate Holdings, the Borrowers and the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities received by Holdings, any Intermediate Parent, Intermediate Holdings, such Borrower or such Restricted Subsidiary from such transferee that are converted by Intermediate Holdings, such Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by Holdings, any Intermediate Parent, Intermediate Holdings, such Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (j) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of 3.0% of Consolidated Total Assets for the most recently ended Test Period, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(k) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(l) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of Intermediate Holdings, the Borrowers and the Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(m) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(n) Holdings and its Subsidiaries may undertake or consummate any IPO Reorganization Transactions or any transaction related thereto or contemplated thereby.
Appears in 2 contracts
Sources: First Lien Credit Agreement (Endeavor Group Holdings, Inc.), First Lien Credit Agreement (Endeavor Group Holdings, Inc.)
Asset Sales. The Holdings and the Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Holdings, the Borrower or a any Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
(a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets property no longer used or propertyuseful, or economically practicable or commercially desirable to maintain, in the conduct of the business of Holdings and any Restricted Subsidiary (including assets by ceasing to enforce, allowing the lapse, abandonment or propertyinvalidation of or discontinuing the use or maintenance of or putting into the public domain any Intellectual Property that is, in the reasonable judgment of Holdings, the Borrower or the Restricted Subsidiaries, no longer used or useful, or economically practicable or commercially desirable to maintain, or in the conduct respect of the core or principal business of which Holdings, the Borrower and or any Restricted Subsidiary determines in its Restricted Subsidiaries (including allowing any registration reasonable business judgment that such action or application for registration of any Intellectual Property that inaction is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidateddesirable);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property (or a functional equivalent of such property) or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property (or a functional equivalent of such property);
(d) Dispositions of property to Holdings, the Borrower or a any Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.07 and Liens permitted by Section 7.026.02;
(f) Dispositions of property acquired by Holdings, the Borrower or any of the Restricted Subsidiaries after the Effective Date pursuant to sale-leaseback transactions;
(g) Dispositions of Permitted Investments;
(h) Dispositions or forgiveness of accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties);
(i) leases, subleases, service agreements, product sales, transfers, licenses or sublicenses (including transfers, licenses and sublicenses of Intellectual Property), in each case that do not materially interfere with the business of Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events;
(k) Dispositions of property to Persons other than Restricted Subsidiaries (including the sale or issuance of Equity Interests of a Restricted Subsidiary) for fair market value (as determined by a Responsible Officer of the Borrower in good faith) not otherwise permitted under this Section 6.05; provided that with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of $20,000,000, Holdings, the Borrower or such Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that solely for the purposes of this clause (k), (A) any liabilities (as shown on the most recent balance sheet of Holdings, the Borrower or such Restricted Subsidiary or in the footnotes thereto) of Holdings, the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which Holdings, the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities, notes or other obligations or assets received by Holdings, the Borrower or such Restricted Subsidiary from such transferee that are converted by Holdings, the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within one hundred and eighty (180) days following the closing of the applicable Disposition, shall be deemed to be cash, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to Holdings or its Restricted Subsidiaries), to the extent that Holdings, the Borrower and all of the Restricted Subsidiaries (to the extent previously liable thereunder) are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition, shall be deemed to be cash, (D) any Designated Non-Cash Consideration received by Holdings, the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate fair market value (as determined by a Responsible Officer of the Borrower in good faith), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess of $20,000,000 at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value (as determined by a Responsible Officer of the Borrower in good faith) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash and (E) consideration received in connection with an asset swap shall be deemed “cash”;
(l) Dispositions of Investments in joint ventures or non-wholly owned Subsidiaries to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets not constituting Collateral hereunder, provided that the aggregate fair market value (as determined in good faith by the Borrower) of all such Dispositions, in the aggregate, shall not be in excess of the greater of (A) $10,000,000 and (B) 15% of Consolidated EBITDA at the time of such Disposition;
(n) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment not prohibited hereunder, which assets are not used or useful to the core or principal business of Holdings, the Borrower and the Restricted Subsidiaries; provided that the fair market value of such assets shall not exceed 30% of the consideration paid in such Permitted Acquisition or Investment or (B) made to obtain the approval of any applicable antitrust authority in connection with the Transactions;
(i) any Disposition of accounts receivable, Securitization Assets, any participations thereof, or related assets in connection with or any Qualified Securitization Facility or (iii) the sale or discount of inventory, accounts receivable or notes receivable in the ordinary course of business or the conversion of accounts receivable to notes receivable;
(p) transfers of condemned real property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of real property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(q) Dispositions constituting any part of a Permitted Reorganization;
(r) Dispositions of Unrestricted Subsidiaries (other than Unrestricted Subsidiaries the primary assets of which are Permitted Investments received from Holdings or a Restricted Subsidiary) or assets acquired from Unrestricted Subsidiaries;
(s) any swap of assets in exchange for services or other assets in the ordinary course of business of comparable or greater fair market value of usefulness to the business of Holdings and its Restricted Subsidiaries, taken as a whole, as determined in good faith by the Borrower; provided that the aggregate fair market value (as determined in good faith by the Borrower) of all assets constituting Collateral that are exchanged for other assets not constituting Collateral pursuant to this clause (s) shall not exceed the greater of (x) $10,000,000 and (y) 15% of Consolidated EBITDA at the time of such swap of assets;
(t) other Dispositions in an aggregate amount not be in excess of the greater of (A) $15,000,000 and (B) 20% of Consolidated EBITDA at the time of such Disposition;
(u) samples, including time-limited evaluation software, provided to customers or prospective customers;
(v) de minimis amounts of equipment or other assets provided to employees;
(w) the unwinding of any Cash Management Obligations or Swap Agreement pursuant to its terms;
(x) sales, transfers, leases or other dispositions to Holdings or a Restricted Subsidiary pursuant to Intercompany License Agreements; and
(y) Holdings and any Restricted Subsidiary may (i) terminate or otherwise collapse its cost sharing agreements with Holdings or any Restricted Subsidiary and settle any crossing payments in connection therewith, (ii) convert any intercompany Indebtedness to Equity Interests, (iii) transfer any intercompany Indebtedness to Holdings or any Restricted Subsidiary, (iv) settle, discount, write off, forgive or cancel any intercompany Indebtedness or other obligation owing by Holdings or any Restricted Subsidiary, (v) settle, discount, write off, forgive or cancel any Indebtedness owing by any present or former consultants, directors, officers or employees, Holdings or any Restricted Subsidiary or any of their successors or assigns or (vi) surrender or waive contractual rights and settle or waive contractual or litigation claims.
Appears in 2 contracts
Sources: Repricing Amendment (Simply Good Foods Co), Repricing Amendment (Simply Good Foods Co)
Asset Sales. The Borrower will not, and nor will not it permit any of its Restricted Subsidiary to, Subsidiaries to (i) voluntarily sell, transfer, lease lease, license or otherwise dispose (including any disposition of property or assets to a Divided Delaware LLC pursuant to a Delaware LLC Division) of any asset, including any Equity Interest owned by it it, or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than (A) issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than Law, (B) issuing Equity Interests to the Borrower or a any Restricted Subsidiary in compliance with Section 7.04(c6.04(c) and (C) any non-wholly-owned Restricted Subsidiary issuing Equity Interests of such Subsidiary to each owner of Equity Interests of such Subsidiary ratably based on their relative ownership interests), in each case, having a Fair Market Value, in a single transaction or a series of related transactions, as of the date of such transaction(s) exceeding (x) $1,000,000, individually or (y) $2,500,000, in the aggregate in any fiscal year (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, if made in good faith determination of the board of directors of the Borrower and/or in the ordinary course of business or consistent with past practice and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its the Restricted Subsidiaries (including (i) allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated)invalidated or (ii) disposing of, discontinuing the use or maintenance of, abandoning, failing to pursue or otherwise allowing to lapse, expire, terminate or put into the public domain any of its Intellectual Property) if the Borrower determines in its reasonable business judgment that such discontinuance is desirable in the conduct of its business and does not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of businessincluding on an intercompany basis);
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property property, or other assets of comparable or greater value or usefulness to the business or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a any Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan PartyParty (other than Holdings), (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04 (other than clause (x) thereof), Restricted Payments permitted by Section 7.07 6.08 and Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e);
(f) Dispositions of cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(A) sales, discounts of or forgiveness of customer delinquent notes or delinquent accounts receivable, notes receivable or other current assets in the ordinary course of business or consistent with industry practice or the conversion of delinquent accounts receivable to notes receivable or other dispositions of delinquent accounts receivable in connection with settlement, collection or compromise thereof and (B) Dispositions of Permitted Receivables Financing Assets pursuant to any Permitted Receivables Financing; provided that (x) the aggregate face amount of Permitted Receivables Financing Assets subject to a Disposition for a Permitted Receivables Financing shall not exceed, at the time of any such Disposition, $100,000,000 and (y) at the time of any such Disposition of Permitted Receivables Financing Assets, the Borrower and the Restricted Subsidiaries shall be in compliance, after giving pro forma effect to such Disposition or the use of proceeds thereof, with a Contract Asset Balance Coverage Ratio (determined excluding from the Contract Asset Balance Coverage Ratio, the Permitted Receivables Financing Assets so Disposed) that is no less than 2.00:1.00 as of the last day of the Test Period most recently ended on or prior to such date of such Disposition (measured as of the date such Disposition is made based upon the financial statements most recently delivered (or required to have been delivered) on or prior to such date pursuant to Section 5.01(a) or (b));
(h) leases, subleases, licenses or sublicenses, in each case in the ordinary course of business or consistent with past practice or that do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(i) transfers or other Dispositions of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(j) Dispositions of other assets or property (including the sale or issuance of Equity Interests in a Restricted Subsidiary) not otherwise permitted under this Section 6.05; provided that (i) such Disposition is made for Fair Market Value, (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of the greater of (x) $1,000,000 and (y) 2.5% of Consolidated Cash EBITDA for the Test Period most recently ended on or prior to the date of such Disposition based upon the financial statements most recently delivered (or required to have been delivered) on or prior to such date pursuant to Section 5.01(a) or (b), for any transaction or series of related transactions the Borrower or any Restricted Subsidiary shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (ii), (A) any liabilities (as shown on the most recent balance sheet of the Borrower provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that (1) are assumed by the transferee with respect to the applicable Disposition or (2) are otherwise cancelled or terminated in connection with the transaction with such transferee, and for which the Borrower and its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (j) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of the greater of (x) $1,000,000 and (y) 2.5% of Consolidated Total Assets for the Test Period most recently ended on or prior to the date of such Disposition (measured as of the date such Disposition is made based upon the financial statements most recently delivered (or required to have been delivered) on or prior to such date pursuant to Section 5.01(a) or (b)) (net of any Designated Non-Cash Consideration converted into cash or Cash Equivalents), with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash, and (iii) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(k) Dispositions of Investments in Joint Ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the Joint Venture parties set forth in, Joint Venture agreements and similar binding arrangements;
(l) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not core or principal to the business of the Borrower and the Restricted Subsidiaries and do not exceed 30% of the assets acquired pursuant to such Permitted Acquisition or other Investment or (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(m) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(n) Dispositions of assets that do not constitute Collateral (including Dispositions or issuance of Equity Interests in, Indebtedness of, other securities issued by, Unrestricted Subsidiaries) for Fair Market Value not in excess of the greater of (x) $3,000,000 and (y) 10.0% of Consolidated Total Assets for the Test Period most recently ended on or prior to the date of such Disposition (measured as of the date such Disposition is made based upon the financial statements most recently delivered (or required to have been delivered) on or prior to such date pursuant to Section 5.01(a) or (b));
(o) Dispositions in connection with the Transactions or any Tax Restructuring; provided that, after giving effect to any such Disposition in connection with any Tax Restructuring, the Guarantees of the Loans and the security interests of the Lenders in the Collateral, taken as a whole, would not be adversely impaired in any material respect;
(p) any Disposition of a Sale Leaseback; provided that, during the Suspension Period, after giving effect to such Disposition, the Total Net Cash Leverage Ratio would not exceed 4.00:1.00, calculated on a pro forma basis as of the Test Period most recently ended on or prior to such date of incurrence (measured as of the date such Disposition is made based upon the financial statements most recently delivered (or required to have been delivered) on or prior to such date pursuant to Section 5.01(a) or (b));
(q) any merger, consolidation, amalgamation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(r) [reserved];
(s) each Loan Party and each of its Restricted Subsidiaries may surrender or waive contractual rights and settle or waive contractual or litigation claims in the ordinary course of business or consistent with past practice;
(t) the unwinding of any Swap Agreement pursuant to its terms;
(u) the nominal issuances of Equity Interests of Foreign Subsidiaries in an aggregate amount not to exceed 2.0% of all issued and outstanding Equity Interests of such Foreign Subsidiary on a fully-diluted basis; and
(v) Dispositions to effect the formation of any Subsidiary that is a Divided Delaware LLC; provided that upon formation of such Divided Delaware LLC, the Borrower has complied with Section 5.11 to the extent applicable. Notwithstanding anything herein to the contrary, in no event shall any Loan Party or any of its Restricted Subsidiaries contribute, sell, assign, transfer or otherwise dispose of any Permitted Receivables Facility Assets, including in connection with any factoring transaction, any receivables transaction, securitization transaction, any facilities or programs or other similar transactions relating to Permitted Receivables Facility Assets, other than pursuant to clause (g) above and any Permitted Receivables Facility Assets may not be disposed of and such disposal shall not otherwise be permitted pursuant to any other clause in this Section 6.05; provided that any bona fide Disposition of any Subsidiary, other minority investment, business unit or line of business by the Borrower or any Restricted Subsidiary to a third party (including to any Unrestricted Subsidiary or Joint Venture) and not made to effectuate any Permitted Receivables Financing shall be permitted under and subject to the terms of any applicable exception to this Section 6.05 notwithstanding that any such Subsidiary, other minority investment, business unit or line of Business may own Permitted Receivables Financing Assets. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.05 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing.
Appears in 2 contracts
Sources: Credit Agreement (GoHealth, Inc.), Credit Agreement (GoHealth, Inc.)
Asset Sales. The Neither Holdings nor the Borrower will, nor will not, and will not they permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any assetasset (in one transaction or in a series of related transactions and whether effected pursuant to a Division or otherwise), including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Holdings, the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of Holdings, the Borrower and its the Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, abandoned or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or property, (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement propertyproperty or (iii) such Disposition is allowable under Section 1031 of the Code, or any comparable or successor provision is for like property (and any boot thereon) and for use in a Similar Business;
(d) Dispositions of property to Holdings, the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 and 6.08, Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e);
(f) any issuance, sale or pledge of Equity Interests in, or Indebtedness, or other securities of, an Unrestricted Subsidiary;
(g) Dispositions of Permitted Investments;
(h) Dispositions of (A) accounts receivable, or participations therein, in the ordinary course of business or consistent with past practice or consistent with industry norm (including any discount and/or forgiveness thereof and sales to factors or similar third parties) or in connection with the collection or compromise thereof and (B) receivables and related assets pursuant to any Permitted Receivables Financing;
(i) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and that do not materially interfere with the business of Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(k) Dispositions of property to Persons other than Holdings, the Borrower or any of the Restricted Subsidiaries (including (x) the sale or issuance of Equity Interests in a Restricted Subsidiary and (y) any Sale Leaseback) not otherwise permitted under this Section 6.05; provided that (i) such Disposition is made for Fair Market Value and (ii) except in the case of a Permitted Asset Swap, with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of the greater of (x) $55,000,000 and (y) 10% of Consolidated EBITDA for the most recently ended Test Period for all transactions permitted pursuant to this clause (k) since the Effective Date, Holdings, the Borrower or a Restricted Subsidiary shall receive not less than (I) 75% of such consideration in the form of cash or Permitted Investments for all transactions permitted pursuant to this clause (k) since the Effective Date or (II) 50% of such consideration in the form of cash or Permitted Investments for all transactions permitted pursuant to this clause (k) since the Effective Date; provided, however, that for the purposes of this clause (ii), (A) the greater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of the Borrower (or a Parent Entity) provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of Borrower (or Parent Entity) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by Borrower) of Holdings, the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases Holdings, the Borrower or such Restricted Subsidiary from such liabilities, (B) any securities received by Holdings, the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash, (C) the amount of Indebtedness, other than liabilities that are by their terms subordinated to the Loan Document Obligations or any intercompany debt owed to the Borrower or any Restricted Subsidiary, of any Person that is no longer a Restricted Subsidiary as a result of such Disposition, to the extent that the Borrower and all Restricted Subsidiaries have been validly released from any guarantee of payment of such Indebtedness in connection with such Disposition, (D) the amount of consideration consisting of Indebtedness of any Loan Party (other than Junior Financing) received after the Effective Date from Persons who are not the Borrower or any Restricted Subsidiary and (E) any Designated Non-Cash Consideration received by Holdings, the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of the greater of (x) $240,000,000 and (y) 45% of Consolidated EBITDA for the most recently ended Test Period as of the time of receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(l) Dispositions of Investments in joint ventures, including to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of Holdings, the Borrower and the Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(n) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(o) Dispositions of property for Fair Market Value not otherwise permitted under this Section 6.05 having an aggregate purchase price after the Effective Date not to exceed the greater of (A) $105,000,000 and (B) 20% of Consolidated EBITDA for the most recently ended Test Period at the time of such Disposition, with amounts not used in any fiscal year carried forward to succeeding fiscal years;
(p) the sale or discount (with or without recourse) (including by way of assignment or participation) of other receivables (including, without limitation, trade and lease receivables) and related assets in connection with a Permitted Receivables Financing;
(q) the unwinding of any Swap Obligations or Cash Management Obligations; and
(r) Holdings and its Subsidiaries may undertake or consummate any Tax Restructuring.
Appears in 2 contracts
Sources: First Lien Credit Agreement (First Advantage Corp), First Lien Credit Agreement (First Advantage Corp)
Asset Sales. The Borrower Borrowers will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (including, in each case, pursuant to a Delaware LLC Division) (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the any Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and consistent with past practices and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower Borrowers and its Restricted their Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, abandoned or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of businessconsistent with past practices;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or property, (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement propertyproperty or (iii) such Disposition is allowable under Section 1031 of the Code, or any comparable or successor provision is for like property (and any boot thereon) and for use in a Similar Business;
(d) Dispositions of property to the Borrower Borrowers or a Restricted Subsidiary; provided that if the transferor in such Subsidiary (including as a transaction is result of a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; Delaware LLC Division);
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 and 6.08, Liens permitted by Section 7.026.02, in each case, other than by reference to Section 6.05;
(f) Dispositions in connection with the Transactions;
(g) Dispositions of Permitted Investments;
(h) Dispositions of accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties);
(i) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and consistent with past practices and that do not materially interfere with the business of the Borrowers and their Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(k) Dispositions of property to Persons other than the Borrowers, any Subsidiary or any Affiliate thereof (including the sale or issuance of Equity Interests in a Subsidiary) not otherwise permitted under this Section 6.05; provided that
(i) such Disposition is made for Fair Market Value and
(ii) except in the case of a Permitted Asset Swap, with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of $1,000,000, the Borrowers or a Subsidiary shall receive not less than 100% of such consideration in the form of cash; provided, however, that for the purposes of this clause (ii), any securities received by such Borrower or such Subsidiary from such transferee that are converted by such Borrower or such Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of the Borrowers and their Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority or otherwise required by a Governmental Authority in connection with a Permitted Acquisition;
(n) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(o) Dispositions of property for Fair Market Value not otherwise permitted under this Section 6.05 having an aggregate purchase price not to exceed $5,000,000;
(p) [reserved]; and
(q) the unwinding of any Swap Obligations or Cash Management Obligations. In addition, neither AMC nor any of its Subsidiaries may make any Disposition to any Affiliate thereof (other than AMC and its Subsidiaries as permitted under this Agreement).
Appears in 2 contracts
Sources: Credit Agreement (Amc Entertainment Holdings, Inc.), Credit Agreement (Amc Entertainment Holdings, Inc.)
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any assetasset (in one transaction or in a series of related transactions and whether effected pursuant to a Division or otherwise), including any Equity Interest owned by it or (ii) it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals or other Persons to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Holdings, the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its the Restricted Subsidiaries (including allowing any Intellectual Property (and any related registration or application for registration of any Intellectual Property application) that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, abandoned or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or property, (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement propertyproperty or (iii) such Disposition qualifies for non-recognition treatment under Section 1031 of the Code, or any comparable or successor provision for like-kind property (and any boot thereon) and for use in a Similar Business;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments and prepayments, purchases and redemptions of Indebtedness permitted by Section 7.07 and 6.08, Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e);
(f) any issuance, sale or pledge of Equity Interests in, or Indebtedness, or other securities of, an Unrestricted Subsidiary;
(g) Dispositions of Permitted Investments;
(h) Dispositions of (A) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) and (B) receivables and related assets pursuant to any Permitted Receivables Financing;
(i) leases, subleases, service agreements, covenants not to ▇▇▇, licenses or sublicenses (including agreements involving the provision of software under an open source license, in copy or as a service, and related data and services), in each case that do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(k) other Dispositions; provided that (i) such Disposition is made for Fair Market Value and (ii) except in the case of a Permitted Asset Swap, with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of the greater of (x) $13,000,000 and (y) 10% of Consolidated EBITDA for the most recently ended Test Period as of such time determined on a Pro Forma Basis for any transaction or series of related transactions, the Borrower or a Restricted Subsidiary shall receive not less than (I) 75% of such consideration in the form of cash or Permitted Investments for all transactions permitted pursuant to this clause (k) since the Effective Date or (II) 50% of such consideration for any individual transaction or series of related transactions in the form of cash or Permitted Investments; provided, however, that for the purposes of this clause (ii), (A) the greater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of the Borrower (or a Parent Entity) provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of the Borrower (or Parent Entity) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower, of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases the Borrower or such Restricted Subsidiary from such liabilities, (B) any securities received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash, (C) the amount of Indebtedness, other than liabilities that are by their terms subordinated to the Loan Document Obligations or any intercompany debt owed to the Borrower or any Restricted Subsidiary, that is of any Person, that is no longer a Restricted Subsidiary as a result of such Disposition, to the extent that the Borrower and all Restricted Subsidiaries have been validly released from any guarantee of payment of such Indebtedness in connection with such Disposition, (D) the amount of consideration consisting of Indebtedness of any Loan Party (other than Junior Financing) received after the Effective Date from Persons who are not the Borrower or any Restricted Subsidiary and (E) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of the greater of (x) $59,000,000 and (y) 45% of Consolidated EBITDA for the most recently ended Test Period as of such time determined on a Pro Forma Basis, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(l) Dispositions of Investments in joint ventures, including to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of the Borrower and the Restricted Subsidiaries or (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(n) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(o) Dispositions by a captive insurance subsidiary of Investments;
(p) Dispositions of property for Fair Market Value not otherwise permitted under this Section 6.05 having an aggregate purchase price not to exceed the greater of (A) $20,000,000 and (B) 15% of Consolidated EBITDA for the most recently ended Test Period as of such time determined on a Pro Forma Basis;
(q) the sale or discount (with or without recourse) (including by way of assignment or participation) of other receivables (including, without limitation, trade and lease receivables) and related assets in connection with a Permitted Receivables Financing; and
(r) the unwinding of any Swap Obligations or Cash Management Obligations.
Appears in 2 contracts
Sources: Credit Agreement (EverCommerce Inc.), Credit Agreement (EverCommerce Inc.)
Asset Sales. The (a) Neither Holdings, the Company nor any Borrower will, nor will not, and will not they permit any Restricted Subsidiary or Intermediate Parent, to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Holdings, the Company, a Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(ab) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of Holdings, any Intermediate Parent, the Borrower Company, the Borrowers and its the Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, abandoned or be invalidated);
(bc) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(cd) [reserved];
(e) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Company, a Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04;
(ef) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 and 6.08, Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(f);
(g) any issuance, sale or pledge of Equity Interests in, or Indebtedness, or other securities of, an Unrestricted Subsidiary (other than VMware);
(h) Dispositions of Permitted Investments;
(i) Dispositions of (A) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) and (B) receivables, DFS Financing Assets and related assets pursuant to any Permitted Receivables Financing;
(j) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and that do not materially interfere with the business of Holdings, the Company, the Borrowers and the Restricted Subsidiaries, taken as a whole;
(k) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(l) Dispositions of property to Persons other than Holdings, the Company, any Borrower or any of the Restricted Subsidiaries (including (x) the sale or issuance of Equity Interests in a Restricted Subsidiary and (y) any Sale Leaseback) not otherwise permitted under this Section 6.05; provided that (i) such Disposition is made for Fair Market Value and (ii) with respect to any Disposition or series of related Dispositions pursuant to this clause (l) for a purchase price in excess of the greater of $100,000,000 and 1% of Consolidated EBITDA for the most recently ended Test Period, for all transactions permitted pursuant to this clause (l) since the Effective Date, the Company, a Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that for the purposes of this clause (ii), (A) the greater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of the Company (or a Parent Entity) provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of the Company (or Parent Entity) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company) of the Company, such Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Guaranteed Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases the Company, such Borrower or such Restricted Subsidiary from such liabilities, (B) any securities received by Holdings, any Intermediate Parent, the Company, such Borrower or such Restricted Subsidiary from such transferee that are converted by the Company, such Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by Holdings, any Intermediate Parent, the Company, such Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of 5% of Consolidated Total Assets for the most recently ended Test Period as of the time of receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(m) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(n) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of the Company, the Borrowers and the Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(o) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(p) [reserved];
(q) the sale or discount (with or without recourse) (including by way of assignment or participation) of DFS Financing Assets or other receivables (including, without limitation, trade and lease receivables) and related assets in connection with a Permitted Receivables Financing; and
(r) the unwinding of any Swap Obligations or Cash Management Obligations.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Dell Technologies Inc)
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c7.4(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
(a) Dispositions of obsolete, damaged, used, surplus or worn out propertyproperty (other than surplus Inventory sold outside the ordinary course of business), whether now owned or hereafter acquired, and Dispositions of non-core assets or property, (including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted Subsidiaries Subsidiaries) (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Credit Party, then either (i) the transferee must be a Loan Credit Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Credit Party in accordance with Section 7.04 7.4 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Credit Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Credit Party in accordance with Section 7.04; 7.4 and to the extent such Disposition includes ABL First Lien Collateral with a fair market value in excess of $5,000,000 individually or in the aggregate, the Borrower shall have provided an updated Borrowing Base Certificate prepared on a Pro Forma Basis for such Disposition to the Administrative Agent;
(e) Dispositions permitted by Section 7.037.3, Investments permitted by Section 7.047.4, Restricted Payments permitted by Section 7.07 7.7 and Liens permitted by Section 7.027.2;
(f) Dispositions of property acquired by the Borrower or any of the Restricted Subsidiaries pursuant to sale-leaseback transactions;
(g) Dispositions of Permitted Investments;
(h) Dispositions or forgiveness of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof (including sales to factors or other third parties);
(i) leases, subleases, service agreements, product sales, licenses or sublicenses (including licenses and sublicenses of Intellectual Property), in each case that do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events;
(k) Dispositions of property to Persons other than Restricted Subsidiaries (including the sale or issuance of Equity Interests of a Restricted Subsidiary) for fair market value (as determined by a Responsible Officer of the Borrower in good faith) not otherwise permitted under this Section 7.5; provided that (a) with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of $50,000,000, the Borrower or any Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments and (b) to the extent such Disposition includes ABL First Lien Collateral with a fair market value in excess of $5,000,000 individually or in the aggregate, the Borrower shall have provided an updated Borrowing Base Certificate prepared on a Pro Forma Basis for such Disposition to the Administrative Agent; provided, however, that solely for the purposes of this clause (k), (A) any liabilities (as shown on the most recent balance sheet of the Borrower or such Restricted Subsidiary or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities, notes or other obligations or assets received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within one hundred and eighty (180) days following the closing of the applicable Disposition, shall be deemed to be cash, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to the Borrower or its Restricted Subsidiaries), to the extent that the Borrower and all of the Restricted Subsidiaries (to the extent previously liable thereunder) are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition, shall be deemed to be cash and (D) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate fair market value (as determined by a Responsible Officer of the Borrower in good faith), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess of $50,000,000 at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value (as determined in good faith by the Borrower) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment not prohibited hereunder, which assets are not used or useful to the core or principal business of the Borrower and its Restricted Subsidiaries and/or (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(n) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement; and
(o) any Disposition of the Equity Interests of any Immaterial Subsidiary or Unrestricted Subsidiary.
Appears in 2 contracts
Sources: Credit Agreement (Installed Building Products, Inc.), Credit Agreement (Installed Building Products, Inc.)
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any assetasset (in one transaction or in a series of related transactions and whether effected pursuant to a Division or otherwise), including any Equity Interest owned by it or (ii) it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals or other Persons to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Holdings, the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its the Restricted Subsidiaries (including allowing any Intellectual Property (and any related registration or application for registration of any Intellectual Property application) that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, abandoned or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or property, (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement propertyproperty or (iii) such Disposition qualifies for non-recognition treatment under Section 1031 of the Code, or any comparable or successor provision for like-kind property (and any boot thereon) and for use in a Similar Business;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments and prepayments, purchases and redemptions of Indebtedness permitted by Section 7.07 and 6.08, Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e);
(f) any issuance, sale or pledge of Equity Interests in, or Indebtedness, or other securities of, an Unrestricted Subsidiary;
(g) Dispositions of Permitted Investments;
(h) Dispositions of (A) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) and (B) receivables and related assets pursuant to any Permitted Receivables Financing;
(i) leases, subleases, service agreements, covenants not to sue, licenses or sublicenses (including agreements involving the provision of software under an open source license, in copy or as a service, and related data and services), in each case that do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(k) other Dispositions; provided that (i) such Disposition is made for Fair Market Value and (ii) except in the case of a Permitted Asset Swap, with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of the greater of (x) $13,000,000 and (y) 10% of Consolidated EBITDA for the most recently ended Test Period as of such time determined on a Pro Forma Basis for any transaction or series of related transactions, the Borrower or a Restricted Subsidiary shall receive not less than (I) 75% of such consideration in the form of cash or Permitted Investments for all transactions permitted pursuant to this clause (k) since the Effective Date or (II) 50% of such consideration for any individual transaction or series of related transactions in the form of cash or Permitted Investments; provided, however, that for the purposes of this clause (ii), (A) the greater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of the Borrower (or a Parent Entity) provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of the Borrower (or Parent Entity) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower, of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases the Borrower or such Restricted Subsidiary from such liabilities, (B) any securities received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash, (C) the amount of Indebtedness, other than liabilities that are by their terms subordinated to the Loan Document Obligations or any intercompany debt owed to the Borrower or any Restricted Subsidiary, that is of any Person, that is no longer a Restricted Subsidiary as a result of such Disposition, to the extent that the Borrower and all Restricted Subsidiaries have been validly released from any guarantee of payment of such Indebtedness in connection with such Disposition, (D) the amount of consideration consisting of Indebtedness of any Loan Party (other than Junior Financing) received after the Effective Date from Persons who are not the Borrower or any Restricted Subsidiary and (E) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of the greater of (x) $59,000,000 and (y) 45% of Consolidated EBITDA for the most recently ended Test Period as of such time determined on a Pro Forma Basis, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(l) Dispositions of Investments in joint ventures, including to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of the Borrower and the Restricted Subsidiaries or (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(n) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(o) Dispositions by a captive insurance subsidiary of Investments;
(p) Dispositions of property for Fair Market Value not otherwise permitted under this Section 6.05 having an aggregate purchase price not to exceed the greater of (A) $20,000,000 and (B) 15% of Consolidated EBITDA for the most recently ended Test Period as of such time determined on a Pro Forma Basis;
(q) the sale or discount (with or without recourse) (including by way of assignment or participation) of other receivables (including, without limitation, trade and lease receivables) and related assets in connection with a Permitted Receivables Financing; and
(r) the unwinding of any Swap Obligations or Cash Management Obligations.
Appears in 2 contracts
Sources: Credit Agreement (EverCommerce Inc.), Credit Agreement (EverCommerce Inc.)
Asset Sales. The Borrower Issuer will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower Issuer or a any Restricted Subsidiary in compliance with Section 7.04(c5.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
(a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower Issuer and its any Restricted Subsidiaries Subsidiary (including by ceasing to enforce, abandoning, allowing any registration to lapse, terminate or application for registration be invalidated, discontinuing the use or maintenance of or putting into the public domain any Intellectual Property that is is, in the reasonable judgment of the Issuer or the Restricted Subsidiaries, no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidatedin respect of which the Issuer or any Restricted Subsidiary determines in its reasonable business judgment that such action or inaction is desirable);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower Issuer or a any Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Note Party, then either (i) the transferee must be a Loan Note Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Note Party in accordance with Section 7.04 5.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Note Party, such Disposition is for fair market value Fair Market Value (as determined in good faith by the BorrowerIssuer) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Note Party in accordance with Section 7.045.04; (e) Dispositions permitted by Section 7.035.03, Investments permitted by Section 7.045.04, Restricted Payments permitted by Section 7.07 5.07 and Liens permitted by Section 7.025.02;
Appears in 2 contracts
Sources: Indenture (Sotera Health Co), Indenture (Sotera Health Co)
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest Interests owned by it or (ii) it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest Interests in such Restricted Subsidiary (other than (i) any Restricted Subsidiary issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than (ii) any Restricted Subsidiary issuing Equity Interests to the Borrower or a another Restricted Subsidiary in compliance with Section 7.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaningor ratably to its holders of its Equity Interests), except:
(a) Dispositions sales, transfers, leases and other dispositions of (i) inventory, goods or services or immaterial assets in the ordinary course of business, (ii) obsolete, damagedworn-out, useduneconomic, damaged or surplus property or worn out property, whether now owned or hereafter acquired, and Dispositions of non-core assets or property, including assets or property, no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property property that is no longer economically practical or commercially desirable to maintain or used or usefuluseful in its business, whether now or economically practicable to maintainhereafter owned or leased or acquired in connection with an Acquisition, to lapse(iii) cash, go abandoned, or be invalidated);
(b) Dispositions of inventory Cash Equivalents and other assets investment securities in the ordinary course of business, (including Settlement Assetsiv) accounts in the ordinary course of business for purposes of collection, and (v) assets to the extent that the aggregate value of such assets sold in any single transaction or consistent with past practice related series of transactions is equal to $6,500,000 or held for sale less and the aggregate value of such assets sold during any fiscal year of the Borrower is equal to $13,000,000 or no longer used in less;
(b) sales, transfers, leases and other dispositions to the ordinary course Borrower or any Subsidiary (including by contribution, disposition, dividend or otherwise); provided that if the transferor of business and immaterial assets such property is a Loan Party, then (considered in x) the aggregatetransferee thereof must be a Loan Party or (y) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition (1) is in the ordinary course of business;
, (c2) Dispositions of property to the extent for fair value and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 6.04 (iother than Section 6.04(l) such property is exchanged for credit against the purchase price of similar replacement property and (aa)), or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii3) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 (other than Section 6.04(l) and (aa));
(c) sales, transfers and other dispositions of accounts receivable (including write-offs, discounts and compromises) in connection with the compromise, settlement or collection thereof;
(iiid) sales, transfers, leases and other dispositions of property to the extent constituting that such property constitutes an Investment permitted by Section 6.04 (other than Section 6.04(l) and (aa)) hereunder or another asset received as consideration for the disposition of any asset permitted by this Section (in each case, other than Equity Interests in a Disposition Restricted Subsidiary, unless all Equity Interests in such Restricted Subsidiary are sold);
(e) leases or licenses or subleases or sublicenses entered into in the ordinary course of business, to the extent that they do not materially interfere with the business of Holdco and the Restricted Subsidiaries taken as a whole;
(f) conveyances, sales, transfers, licenses, including, for the avoidance of doubt, any licensing of curriculums, or sublicenses or other dispositions of Software or other rights in Intellectual Property in the ordinary course of business or pursuant to a research or development agreement in which the counterparty to such agreement receives a license to Software or other Intellectual Property that result from such agreement;
(g) dispositions resulting from any casualty or insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary;
(h) the abandonment, lapse, expiration or other disposition of Intellectual Property, whether now or hereafter owned or leased or acquired in connection with an Acquisition or other permitted Investment that is, in the reasonable good faith judgment of the Borrower, no longer economically practicable or commercially desirable to maintain or used or useful in the business of the Borrower and the Restricted Subsidiaries;
(i) [Reserved];
(j) dispositions from and after the Closing Date of non-core or obsolete assets acquired in connection with any Acquisition or other permitted Investments;
(k) sales, transfers and other dispositions by the Borrower or any Restricted Subsidiary that is not a Loan Party, of assets since the Closing Date so long as (A) such Disposition disposition is for fair market value (as determined in good faith by the Borrower or such Restricted Subsidiary), (B) if at the time of execution of a binding agreement in respect of such sale, transfer or other disposition, no Event of Default has occurred and is continuing or would result therefrom, (C) at least 75% of the consideration (other than (A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Borrower or any of its Restricted Subsidiaries and the valid release of the Borrower or such Restricted Subsidiary, by all applicable creditors in writing, from all liability on such Indebtedness or other liability in connection with such Disposition, (B) securities, notes or other obligations received by the Borrower or any of its Restricted Subsidiaries from the transferee that are converted by the Borrower or any of its Restricted Subsidiaries into cash or Cash Equivalents within 180 days following the closing of such Disposition, (C) [Reserved], (D) consideration consisting of Indebtedness of the Borrower (other than Subordinated Indebtedness) received after the Closing Date from Persons who are not the Borrower or any Restricted Subsidiary and (E) in connection with an asset swap, all of which shall be deemed “cash”) received is cash or Cash Equivalents or Designated Non-Cash Consideration to the extent that all Designated Non-Cash Consideration at such time does not exceed the greater of (x) $47,000,000 and (y) 32% of Consolidated EBITDA for the most recently ended four fiscal quarter period for which financial statements are available (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and all of the consideration received is at least equal to the fair market value of the assets sold, transferred or otherwise disposed of and (D) the Net Proceeds thereof shall be subject to Section 2.11(c);
(l) sales, transfers and other dispositions permitted by Section 6.03 (other than Section 6.03(a)(vii) or (b)(viii));
(m) the sale or exchange of specific items of property, so long as the purpose of each such sale or exchange is to acquire (and results within 365 days of such sale or exchange in the acquisition of) replacement items of property that are the functional equivalent of the item of property so sold or exchanged;
(n) the incurrence of Liens permitted hereunder;
(o) [reserved];
(p) sales, transfers and other dispositions made in order to effect the Transactions;
(q) sales or dispositions of Equity Interests of any Subsidiary (other than the Borrower) in order to qualify members of the Governing Body of such Subsidiary if required by applicable law;
(r) samples, including time-limited evaluation software, provided to customers or prospective customers;
(s) de minimis amounts of equipment provided to employees;
(t) sales, transfers and other dispositions of any promissory note Equity Interests in Unrestricted Subsidiaries or their assets;
(u) Restricted Payments made pursuant to Section 6.08;
(v) Permitted Sale Leasebacks in an aggregate principal amount not to exceed the greater of $30,000,000 and 20% of Consolidated EBITDA;
(w) the unwinding of any Cash Management Agreement or Swap Agreement pursuant to its terms;
(x) sales, transfers or other non-cash consideration received dispositions of Investments in respect thereof is a permitted investment in a Restricted Joint Ventures or any Subsidiary that is not a Loan Party wholly owned Restricted Subsidiary to the extent required by, or made pursuant to customary buy/sell arrangements between, the parties set forth in accordance Joint Venture arrangements and similar binding agreements;
(y) the Borrower and any Restricted Subsidiary may (i) terminate or otherwise collapse its cost sharing agreements with Section 7.04; (e) Dispositions permitted by Section 7.03, Investments permitted by Section 7.04, Restricted Payments permitted by Section 7.07 the Borrower or any Subsidiary and Liens permitted by Section 7.02;settle any crossing payments in connection therewith,
Appears in 1 contract
Asset Sales. The Borrower will (a) AMC shall not, and will shall not permit any Restricted Subsidiary of its Subsidiaries to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (including, in each case, pursuant to a Delaware LLC Division) (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to (i) AMC; (ii) if such Subsidiary is a member of the Borrower AMC Group, an AMC Group Guarantor, (iii) if such Subsidiary is a member of the Muvico Group to the Company or a Restricted Muvico Group Guarantor, or (iv) if such Subsidiary in compliance with Section 7.04(c)is a member of the Odeon Group, another member of the Odeon Group) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(ai) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and consistent with past practices and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower AMC and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, abandoned or be invalidated);
(bii) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of businessconsistent with past practices;
(ciii) Dispositions of property to the extent that (iA) such property is exchanged for credit against the purchase price of similar replacement property or property, (iiB) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement propertyproperty or (C) such Disposition is allowable under Section 1031 of the Code, or any comparable or successor provision is for like property (excluding any boot thereon) for use in a Similar Business;
(div) Dispositions of property (A) to AMC or a Subsidiary that is a Guarantor providing a senior secured guaranty of the Notes (including as a result of a Delaware LLC Division); (B) by a Subsidiary that is a member of the Muvico Group to the Company or a Muvico Group Guarantor, or (C) by a Subsidiary that is a member of the Odeon Group to another member of the Odeon Group;
(v) Dispositions (A) permitted by Section 5.01, (B) constituting Permitted Investments, (C) permitted as Restricted Payments by Section 4.06, (D) permitted as Liens by Section 4.07, in each case, other than by reference to this clause (v);
(vi) Dispositions in connection with the Transactions;
(vii) Dispositions of Cash Equivalents;
(viii) Dispositions of accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties);
(ix) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and consistent with past practices and that do not materially interfere with the business of AMC and its Subsidiaries, taken as a whole;
(x) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(xi) Dispositions of property to Persons other than AMC, any Subsidiary or any Affiliate thereof (including the Borrower sale or issuance of Equity Interests in a Restricted Subsidiary) not otherwise permitted under this Indenture; provided that if (A) such Disposition is made for Fair Market Value and (B) except in the transferor case of a Permitted Asset Swap, with respect to any Disposition pursuant to this clause (xi) for a purchase price in excess of $1,000,000, AMC or a Subsidiary shall receive not less than 100% of such a transaction is a Loan Partyconsideration in the form of cash; provided, then either however, that for the purposes of this clause (i) the B), any securities received by AMC or such Subsidiary from such transferee must be a Loan Party, that are converted by AMC or such Subsidiary into cash or Cash Equivalents (ii) to the extent constituting of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash;
(xii) Dispositions of Permitted Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(xiii) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of AMC and its Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority or otherwise required by a Governmental Authority in connection with a Permitted Acquisition;
(xiv) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an Investmentinsurance settlement;
(xv) Dispositions of property for Fair Market Value not otherwise permitted under this Indenture having an aggregate purchase price not to exceed $5,000,000;
(xvi) any sale of the Odeon Group or all or substantially all the assets of the Odeon Group, such Investment must provided that the Odeon Notes (or any Permitted Refinancing thereof) are repaid in full or otherwise cease to be a permitted Investment in a Restricted Subsidiary that is not a Loan Party obligations of AMC or any of its Subsidiaries, and any proceeds thereof (including any repayment of the Odeon Holdco Intercompany Loan) are applied in accordance with Section 7.04 4.16(b) and (c), provided further that any Qualified Reinvestment of such proceeds shall constitute Collateral; and
(xvii) the unwinding of any Swap Obligations or Cash Management Obligations.
(b) In addition, neither AMC nor any of its Subsidiaries may make any Disposition to any Affiliate thereof (other than AMC and its Subsidiaries as permitted elsewhere expressly under this Indenture).
(c) In the event and on each occasion that any Net Proceeds are received by or on behalf of AMC or any of its Subsidiaries in respect of any sale, transfer or other Disposition of any property or asset of AMC or any of its Subsidiaries pursuant to clauses (x), (xi), (xii), (xiii) and (xiv) of Section 4.16(a) or (ii) any termination or sale of a leasehold interest, in each case, other than any Dispositions, terminations or sales resulting in aggregate Net Proceeds in any fiscal year not exceeding $25,000,000 (each such event, an “Asset Sale Prepayment Event”), AMC shall, within 360 days after such Net Proceeds are received:
(i) repay in an aggregate amount up to an amount equal to the amount of such Net Proceeds, the Term Loan Obligations (or any Permitted Refinancing thereof); and/or
(ii) if AMC or any Subsidiary is required to repay or repurchase any other Indebtedness (or offer to repay or repurchase such Indebtedness) that is secured on assets of the Odeon Group pursuant to the terms of the documentation governing such Indebtedness with the proceeds of such Asset Sale Prepayment Event (such Indebtedness required to be so repaid or repurchased (or offered to be repaid or repurchased), the “Odeon Other Applicable Indebtedness”), then the relevant Person may apply the proceeds of such Asset Sale Prepayment Event to prepay such Odeon Other Applicable Indebtedness prior to applying the proceeds pursuant to Section 4.16(c); and/or
(iii) to make a Qualified Reinvestment in the extent constituting a Disposition to a Restricted Subsidiary business of AMC and its Subsidiaries permitted under this Indenture; provided that is not a Loan Partyno Default or Event of Default shall have occurred and be continuing at the time of such Asset Sale Prepayment Event, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; (e) Dispositions permitted by Section 7.03, Investments permitted by Section 7.04, Restricted Payments permitted by Section 7.07 and Liens permitted by Section 7.02;shall result therefrom.
Appears in 1 contract
Asset Sales. The Borrower will not, and nor will not it permit any of its Restricted Subsidiary to, Subsidiaries to (i) voluntarily sell, transfer, lease lease, license or otherwise dispose (including any disposition of property or assets to a Divided Delaware LLC pursuant to a Delaware LLC Division) of any asset, including any Equity Interest owned by it it, or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than (A) issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than Law, (B) issuing Equity Interests to the Borrower or a any Restricted Subsidiary in compliance with Section 7.04(c6.04(c) and (C) any non-wholly-owned Restricted Subsidiary issuing Equity Interests of such Subsidiary to each owner of Equity Interests of such Subsidiary ratably based on their relative ownership interests), in each case, having a Fair Market Value, in a single transaction or a series of related transactions, as of the date of such transaction(s) exceeding (x) $1,000,000, individually or (y) $2,500,000, in the aggregate in any fiscal year (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
: (a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, if made in good faith determination of the board of directors of the Borrower and/or in the ordinary course of business or consistent with past practice and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its the Restricted Subsidiaries (including (i) allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated);
invalidated or (ii) disposing of, discontinuing the use or maintenance of, abandoning, failing to pursue or otherwise allowing to lapse, expire, terminate or put into the public domain any of its Intellectual Property) if the Borrower determines in its reasonable business judgment that such discontinuance is desirable in the conduct of its business and does not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole; (b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
including on an intercompany basis); (c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property property, or other assets of comparable or greater value or usefulness to the business or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
; (d) Dispositions of property to the Borrower or a any Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan PartyParty (other than Holdings), (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.046.04; (e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04 (other than clause (x) thereof), Restricted Payments permitted by Section 7.07 6.08 and Liens permitted by Section 7.02;6.02, in each case, other than by reference to this Section 6.05(e); 165 US-DOCS\115047431.4
Appears in 1 contract
Sources: Credit Agreement and Incremental Facility Agreement (GoHealth, Inc.)
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, (i) voluntarily sell, transfer, lease or otherwise dispose (including pursuant to a division) of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
(a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property or Badcock Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, be dedicated to the public domain or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.03, 6.03 and Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.07 and Liens permitted by Section 7.026.02;
(f) Dispositions of property pursuant to sale and leaseback transactions permitted by Section 6.06 hereto;
(g) Dispositions of Permitted Investments;
(h) Dispositions of accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties);
(i) leases, subleases, service agreements, product sales, abandonments, licenses, sublicenses or other disposals (including of Intellectual Property and Badcock Intellectual Property), in each case, (A) granted in the ordinary course of business or (B) that do not materially interfere with the business of the Borrower and its Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events;
(k) Dispositions of property to Persons other than Subsidiaries (including the sale or issuance of Equity Interests of a Subsidiary and including the sale of real property) for fair market value (as determined by a Responsible Officer of the Lead Borrower in good faith) not otherwise permitted under this Section 6.05; provided that with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of (x) with respect to any single transaction or series of related transactions, $11,500,000 or (y) with respect to all other Dispositions in any fiscal year of the Lead Borrower not excluded from the requirements of this proviso pursuant to the immediately preceding subclause (x), $23,000,000, the Borrower or any Subsidiary shall receive not less than 75% of such consideration in excess of the amounts referred to subclauses (x) and (y) in the form of cash or Permitted Investments; provided, however, that solely for the purposes of this clause (k), (A) any liabilities (as shown on the most recent balance sheet of the Borrower or such Subsidiary or in the footnotes thereto) of the Borrower or such Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities, notes or other obligations or assets received by the Borrower or such Subsidiary from such transferee that are converted by the Borrower or such Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within one hundred and eighty (180) days following the closing of the applicable Disposition, shall be deemed to be cash, (C) Indebtedness of any Subsidiary that ceases to be a Subsidiary as a result of such Disposition (other than intercompany debt owed to the Borrower or its Subsidiaries), to the extent that the Borrower and all of the Subsidiaries (to the extent previously liable thereunder) are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition, shall be deemed to be cash and (D) any Designated Non-Cash Consideration received by the Borrower or such Subsidiary in respect of such Disposition having an aggregate fair market value (as determined by a Responsible Officer of the Lead Borrower in good faith), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess of $28,750,000, with the fair market value (as determined in good faith by the Lead Borrower) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash; provided, further, that, other than in respect of the Disposition described on Schedule 6.05(k), no Event of Default shall have occurred and be continuing at the time of, and after giving effect to, any Disposition made pursuant to this clause (k);
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions or forgiveness of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof;
(n) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment not prohibited hereunder, which assets are not used or useful to the core or principal business of the Borrower and its Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(o) Dispositions of assets that are not Collateral or Badcock Collateral in an aggregate amount not to exceed the greater of $9,200,000 and 2.875% of Consolidated EBITDA for the most recently ended Test Period in any fiscal year of the Lead Borrower;
(p) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(q) any Disposition of the Equity Interests of any Immaterial Subsidiary;
(r) other Dispositions in an aggregate amount not to exceed the greater of $9,200,000 and 2.875% of Consolidated EBITDA for the most recently ended Test Period in any fiscal year of the Lead Borrower;
(s) [reserved];
(t) sales or other dispositions by any Borrower or any Subsidiary of assets in connection with the closing or sale of a retail store location (the closure of a store is not in and of itself the disposition of assets), warehouse, distribution center or corporate office of such Borrower or Subsidiary in the ordinary course of business of such Borrower or Subsidiary, which sale or disposition consists of leasehold interests in the premises of such store or distribution center, the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such store or distribution center; provided, that, such sale shall be on commercially reasonable prices and terms in a bona fide arm’s length transaction; and
(u) Dispositions of Badcock Collateral for fair market value (as determined by a Responsible Officer of the Lead Borrower in good faith). Notwithstanding anything to the contrary in this Section 6.05, other than by virtue of the sale of the Equity Interests of, or all or substantially all of the assets of, one or more Subsidiaries in a transaction not prohibited by this Agreement, no Loan Party shall, directly or indirectly, sell or otherwise transfer (except for non-exclusive leases or non-exclusive licenses with respect thereto) any Material Intellectual Property as of the Effective Date or any interest in any Franchise Agreement to any non-Loan Party.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Franchise Group, Inc.)
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose Dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to it, nor will the Borrower issue any additional Equity Interest in such Restricted Subsidiary the Borrower (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing nominal amounts of Equity Interests that are required to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaningbe held by other Persons under applicable law), except:
(a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business, and Dispositions of non-core assets or property, including assets or property, property no longer used or usefulused, useful or economically practicable to maintain, maintain in connection with or in respect of the Project or the conduct of the core or principal business of the Borrower and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated)Borrower;
(b) Dispositions of inventory cash and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of businessCash Equivalents;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds the net proceeds of such Disposition are is promptly applied to the purchase price of such replacement property;
(d) Dispositions of assets subject to any Casualty Events;
(e) Dispositions of equipment in the ordinary course of business;
(f) licensing the use of or leasing all or a portion of the Project for events to the extent not prohibited by the applicable Related Agreements;
(g) Liens permitted by Section 6.02;
(h) Dispositions of inventory (including advertising, sponsorship, tickets, air time, signage and similar items) in the ordinary course of business;
(i) sales or other Dispositions without recourse and in the ordinary course of business of overdue accounts receivable of financially troubled debtors in connection with the compromise or collection thereof;
(j) the licensing or sublicensing of intellectual property rights on a non-exclusive basis;
(k) the settlement of tort or other litigation claims in the ordinary course of business or determined by the board of directors or similar governing entity to be fair and reasonable in light of the circumstances;
(l) leases or licenses of space in the ordinary course of business that are not material to the Borrower taken as a whole;
(m) the sale, conveyance, assignment, transfer, license, lease, lapse, abandonment or other disposition of property involving property or assets having a fair market value of less than $5,000,000 in a single transaction or a Restricted Subsidiaryseries of related transactions;
(n) other Dispositions; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan PartyBorrower is in pro forma compliance with the Financial Covenants set forth in Section 6.12, both immediately before and immediately after giving effect to such Disposition, (ii) no Default shall have occurred and be continuing both immediately before and immediately after giving effect to such Disposition and (iii) at least 75% of the aggregate consideration for such Disposition shall be paid in cash or Cash Equivalents; provided, however, that any Disposition pursuant to this Section 6.05(n) shall be for fair market value and shall be subject to the requirements of Section 2.08(b); provided, further that, for purposes of this provision, each of the following shall be deemed to be cash:
(i) (A) instruments, notes, securities or other obligations received by the Borrower from the purchaser that within 180 days of the closing is converted by the Borrower to cash or Cash Equivalents, to the extent constituting an Investmentof the cash or Cash Equivalents actually so received and (B) any cash payments received with respect to instruments, notes, securities or other obligations referred to in clause (A) immediately above within 180 days of such Investment must be Disposition;
(ii) the assumption by the purchaser of Indebtedness or other obligations or liabilities (as shown on the Borrower’s most recent balance sheet or in the footnotes thereto) of the Borrower pursuant to operation of law or a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 customary novation or assumption agreement; and
(iii) any Designated Non-Cash Consideration received by Borrower in the Disposition, taken together with all other Designated Non-Cash Consideration received pursuant to the extent constituting a Disposition to a Restricted Subsidiary this clause (iii) that is at that time outstanding, not a Loan Party, to exceed $25,000,000 at the time of receipt of such Disposition is for outstanding Designated Non-Cash Consideration (with the fair market value (as reasonably determined by the Borrower in good faith faith) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(o) Dispositions by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary Borrower that is are not a Loan Party in accordance with Section 7.04; (e) Dispositions permitted by Section 7.03, Investments permitted any other clause of this Section; provided that (i) the aggregate fair value of all assets Disposed of in reliance on this clause shall not exceed $25,000,000 during the term of this Agreement and (ii) all Dispositions made in reliance on this clause shall be made for fair value (as reasonably determined by Section 7.04, Restricted Payments permitted by Section 7.07 and Liens permitted by Section 7.02;the Borrower in good faith).
Appears in 1 contract
Asset Sales. The Borrower will not, and nor will not it permit any of its Restricted Subsidiary to, Subsidiaries to (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest owned by it and including any disposition of property to a Delaware Divided LLC pursuant to a Delaware LLC Division or (ii) permit any of its Restricted Subsidiary Subsidiaries to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, non-core, surplus, damaged, usedunnecessary, surplus unsuitable or worn out propertyproperty or equipment, inventory or other assets, whether now owned or hereafter acquired, in the ordinary course of business or consistent with industry or past practice and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, abandoned or be invalidated);
(b) Dispositions the lapse, abandonment or invalidation of inventory intellectual property rights that are not material to the conduct of the Borrower and other assets (including Settlement Assets) in the ordinary course of business its Restricted Subsidiaries, taken as a whole, or consistent with past practice that are no longer used or held for sale useful or no longer used economically practicable or commercially reasonable to maintain, in each case as reasonably determined by the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of businessBorrower;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or property, (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement propertyproperty or (iii) such Disposition is allowable under Section 1031 of the Code, or any comparable or successor provision is for like property (and any boot thereon) and for use in a Similar Business;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 and 6.08, Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e);
(f) any issuance, disposition or pledge of Equity Interests in, or Indebtedness, or other securities of, an Unrestricted Subsidiary (or a Restricted Subsidiary which owns an Unrestricted Subsidiary so long as such Restricted Subsidiary owns no assets other than the Equity Interests of such Unrestricted Subsidiary);
(g) Dispositions of Permitted Investments;
(h) Dispositions or discounts without recourse (including by way of assignment or participation) of (A) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) and (B) receivables and related assets pursuant to any Permitted Receivables Financing;
(i) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and that do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to any Casualty Event upon receipt of the Net Proceeds of such Casualty Event;
(k) Dispositions of property to Persons other than the Borrower or any of its Restricted Subsidiaries (including (x) the sale or issuance of Equity Interests in a Restricted Subsidiary and (y) any Sale Leaseback) not otherwise permitted under this Section 6.05; provided that (i) such Disposition is made for Fair Market Value and (ii) except in the case of a Permitted Asset Swap, with respect to any Disposition or series of related Dispositions pursuant to this clause (k) for a purchase price in excess of $75,000,000 (provided that if the aggregate amount of all such individual Dispositions or related series of Dispositions that are $75,000,000 or less in any fiscal year exceeds $150,000,000 in the aggregate, then the foregoing $75,000,000 amount shall refer to the purchase price of all such Dispositions in such fiscal year in excess of $75,000,000), for all transactions permitted pursuant to this clause (k) since the Effective Date (on a cumulative basis), the Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that for the purposes of this clause (ii), (A) the greater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of the Borrower provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of the Borrower or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower of the Borrower or such Restricted Subsidiary, other than liabilities that are unsecured, secured by Liens ranking junior to those securing the Secured Obligations or lower in priority as to payment from proceeds of Collateral than the Second Out Facilities or by their terms subordinated to the Loan Document Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases the Borrower or such Restricted Subsidiary from such liabilities, (B) any securities received by the Borrower, the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess (at the date of agreement for the related Disposition) of $40,000,000, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time of contractually agreeing to such Disposition and without giving effect to subsequent changes in value, shall be deemed to be cash; provided that this clause (C) shall not be used in connection with or in furtherance of a Priming Financing/Liability Management Transaction;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of the Borrower and its Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority or any other Governmental Authority or otherwise necessary or advisable to consummate any acquisition (including any Permitted Acquisition) after the Effective Date, as determined by the Borrower;
(n) transfers of condemned property, asset, Equity Interests or Indebtedness as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property, asset, Equity Interests or Indebtedness arising from foreclosure, condemnation, expropriation, forced dispositions, or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(o) the sale or discount or disposition (with or without recourse) (including by way of assignment or participation) of receivables (including, without limitation, trade and lease receivables) and related assets in connection with a Permitted Receivables Financing;
(p) the unwinding of any Swap Obligations or Cash Management Obligations;
(q) Dispositions in connection with any Media for Equity Transaction; provided that such Disposition is not made in connection with or in furtherance of any Priming Financing/Liability Management Transaction;
(r) any sale, transfer or other disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC; provided that the Borrower has complied with Section 5.11 to the extent applicable; and
(s) any disposition of property, assets, Equity Interests or Indebtedness that was acquired with Excluded Contributions if the proceeds of such disposition are used to make a Restricted Payment pursuant to Section 6.08(a)(xxv).
Appears in 1 contract
Asset Sales. The Borrower will not, and nor will not it permit any of its Restricted Subsidiary to, Subsidiaries to (i) voluntarily sell, transfer, lease lease, license or otherwise dispose (including any disposition of property or assets to a Divided Delaware LLC pursuant to a Delaware LLC Division) of any asset, including any Equity Interest owned by it it, or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than (A) issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than Law, (B) issuing Equity Interests to the Borrower or a any Restricted Subsidiary in compliance with Section 7.04(c6.04(c) and (C) any non-wholly owned Restricted Subsidiary issuing Equity Interests of such Subsidiary to each owner of Equity Interests of such Subsidiary ratably based on their relative ownership interests), in each case, having a Fair Market Value, in a single transaction or a series of related transactions, as of the date of such transaction(s) exceeding (x) $1,000,000, individually or (y) $2,500,000, in the aggregate in any fiscal year (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
: (a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, if made in good faith determination of the board of directors of the Borrower and/or in the ordinary course of business or consistent with past practice and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its the Restricted Subsidiaries (including (i) allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated);
invalidated or (ii) disposing of, discontinuing the use or maintenance of, abandoning, failing to pursue or otherwise allowing to lapse, expire, terminate or put into the public domain any of its Intellectual Property) if the Borrower determines in its reasonable business judgment that such discontinuance is desirable in the conduct of its business and does not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole; (b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
including on an intercompany basis); (c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property property, or other assets of comparable or greater value or usefulness to the business or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; (e) Dispositions permitted by Section 7.03, Investments permitted by Section 7.04, Restricted Payments permitted by Section 7.07 and Liens permitted by Section 7.02;
Appears in 1 contract
Sources: Credit Agreement (GoHealth, Inc.)
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any assetasset (in one transaction or in a series of related transactions and whether effected pursuant to a Division or otherwise), including any Equity Interest owned by it or (ii) it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals or other Persons to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Holdings, the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c5.2(d)(iii)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(ai) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted the Subsidiaries (including allowing any Intellectual Property (and any related registration or application for registration of any Intellectual Property application) that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, abandoned or be invalidated);
(bii) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(ciii) Dispositions of property to the extent that (iA) such property is exchanged for credit against the purchase price of similar replacement property or property, (iiB) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement propertyproperty or (C) such Disposition qualifies for non-recognition treatment under Section 1031 of the Code, or any comparable or successor provision for like-kind property (and any boot thereon) and for use in a Similar Business;
(div) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Note Party, then either (iA) the transferee must be a Loan Note Party, (iiB) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Note Party in accordance with permitted by Section 7.04 5.2(d) or (iiiC) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Note Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value having an aggregate purchase price not to exceed $3,000,000 and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Note Party in accordance with permitted by Section 7.04; 5.2(d);
(ev) Dispositions permitted by Section 7.035.2(c), Investments permitted by Section 7.045.2(d), Restricted Payments and prepayments, purchases and redemptions of Indebtedness permitted by Section 7.07 5.2(h), and Liens permitted by Section 7.025.2(b), in each case, other than by reference to this Section 5.2(e)(v);
(vi) Dispositions of property and assets set forth in Schedule 5.2(e)(vi);
(vii) Dispositions of Permitted Investments;
(viii) Dispositions of (A) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) and (B) receivables and related assets pursuant to any Permitted Receivables Financing;
(ix) leases, subleases, service agreements, covenants not to sue, licenses or sublicenses (including agreements involving the provision of software under an open source license, in copy or as a service, and related data and services), in each case that do not materially interfere with the business of the Borrower and the Subsidiaries, taken as a whole;
(x) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(xi) other Dispositions to third parties that are not Affiliates; provided that (A) such Disposition is made for Fair Market Value and (B) except in the case of a Permitted Asset Swap, with respect to any Disposition pursuant to this clause (xi) for a purchase price in excess of the greater of (x) $10,000,000 and (y) 1.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period as of such time determined on a Pro Forma Basis for any transaction or series of related transactions, the Borrower or a Subsidiary shall receive not less than (I) 75% of such consideration in the form of cash or Permitted Investments for all transactions permitted pursuant to this clause (xi) since the Funding Date or (II) 50% of such consideration for any individual transaction or series of related transactions in the form of cash or Permitted Investments; provided, however, that for the purposes of this clause (II), (1) the greater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of the Borrower (or a Parent Entity) provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of the Borrower (or a Parent Entity) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower, of the Borrower or such Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases the Borrower or such Subsidiary from such liabilities, (2) any securities received by the Borrower or such Subsidiary from such transferee that are converted by the Borrower or such Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash, (3) the amount of Indebtedness, other than liabilities that are by their terms subordinated to the Obligations or any intercompany debt owed to the Borrower or any Subsidiary, that is of any Person that is no longer a Subsidiary as a result of such Disposition, to the extent that the Borrower and all Subsidiaries have been validly released from any guarantee of payment of such Indebtedness in connection with such Disposition, (4) the amount of consideration consisting of Indebtedness of any Note Party (other than Junior Financing) received after the Revolving Credit Agreement Effective Date from Persons who are not the Borrower or any Subsidiary and (5) any Designated Non-Cash Consideration received by the Borrower or such Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (xi) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of the greater of (x) $20,000,000 and (y) 3.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period as of such time determined on a Pro Forma Basis, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(xii) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(xiii) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of the Borrower and the Subsidiaries or (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(xiv) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(xv) Dispositions by a captive insurance subsidiary of Investments;
(xvi) from and after the Revolving Credit Agreement Effective Date, Dispositions of property for Fair Market Value to third parties that are not Affiliates not otherwise permitted under this Section 5.2(e) having an aggregate purchase price not to exceed the greater of (A) $20,000,000 and (B) 3.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period as of such time determined on a Pro Forma Basis;
(xvii) the sale or discount (with or without recourse) (including by way of assignment or participation) of other receivables (including, without limitation, trade and lease receivables) and related assets in connection with a Permitted Receivables Financing; and
(xviii) the unwinding of any Swap Obligations or Cash Management Obligations. Notwithstanding the foregoing, in no event shall any Note Party be permitted to Dispose of any Material Intellectual Property to any non-Note Party other than as set forth on Schedule 5.2(d).
Appears in 1 contract
Asset Sales. The Borrower Issuer will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest Interests owned by it or (ii) it, nor will the Issuer permit any Restricted Subsidiary to issue any additional Equity Interest Interests in such Restricted Subsidiary (other than (i) any Restricted Subsidiary issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than (ii) any Restricted Subsidiary issuing Equity Interests to the Borrower Issuer or a another Restricted Subsidiary in compliance with Section 7.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaningor ratably to its holders of its Equity Interests), except:
(a) Dispositions sales, transfers, leases and other dispositions of (i) inventory, goods or services or immaterial assets in the ordinary course of business, (ii) obsolete, damagedworn-out, useduneconomic, damaged or surplus property or worn out property, whether now owned or hereafter acquired, and Dispositions of non-core assets or property, including assets or property, no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property property that is no longer economically practical or commercially desirable to maintain or used or usefuluseful in its business, whether now or economically practicable to maintainhereafter owned or leased or acquired in connection with an Acquisition, to lapse(iii) cash, go abandoned, or be invalidated);
(b) Dispositions of inventory Cash Equivalents and other assets investment securities in the ordinary course of business, (including Settlement Assetsiv) accounts in the ordinary course of business for purposes of collection, and (v) assets to the extent that the aggregate value of such assets sold in any single transaction or consistent with past practice related series of transactions is equal to $6,500,000 or held for sale less and the aggregate value of such assets sold during any fiscal year of the Issuer is equal to $13,000,000 or no longer used in less;
(b) sales, transfers, leases and other dispositions to the ordinary course Issuer or any Subsidiary (including by contribution, disposition, dividend or otherwise); provided that if the transferor of business and immaterial assets such property is a Note Party, then (considered in x) the aggregatetransferee thereof must be a Note Party or (y) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Note Party, such Disposition (1) is in the ordinary course of business;
, (c2) Dispositions of property to the extent for fair value and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Note Party in accordance with Section 6.04 (iother than Section 6.04(l) such property is exchanged for credit against the purchase price of similar replacement property and (aa)), or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii3) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Note Party in accordance with Section 7.04 6.04 (other than Section 6.04(l) and (aa));
(c) sales, transfers and other dispositions of accounts receivable (including write-offs, discounts and compromises) in connection with the compromise, settlement or collection thereof;
(iiid) sales, transfers, leases and other dispositions of property to the extent constituting that such property constitutes an Investment permitted by Section 6.04 (other than Section 6.04(l) and (aa)) hereunder or another asset received as consideration for the disposition of any asset permitted by this Section (in each case, other than Equity Interests in a Disposition Restricted Subsidiary, unless all Equity Interests in such Restricted Subsidiary are sold);
(e) leases or licenses or subleases or sublicenses entered into in the ordinary course of business, to the extent that they do not materially interfere with the business of Holdco and the Restricted Subsidiaries taken as a whole;
(f) conveyances, sales, transfers, licenses, including, for the avoidance of doubt, any licensing of curriculums, or sublicenses or other dispositions of Software or other rights in Intellectual Property in the ordinary course of business or pursuant to a research or development agreement in which the counterparty to such agreement receives a license to Software or other Intellectual Property that result from such agreement;
(g) dispositions resulting from any casualty or insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Issuer or any Restricted Subsidiary;
(h) the abandonment, lapse, expiration or other disposition of Intellectual Property, whether now or hereafter owned or leased or acquired in connection with an Acquisition or other permitted Investment that is, in the reasonable good faith judgment of the Issuer, no longer economically practicable or commercially desirable to maintain or used or useful in the business of the Issuer and the Restricted Subsidiaries;
(i) [Reserved];
(j) dispositions from and after the Closing Date of non-core or obsolete assets acquired in connection with any Acquisition or other permitted Investments;
(k) sales, transfers and other dispositions by the Issuer or any Restricted Subsidiary that is not a Loan Party, of assets since the Closing Date so long as (A) such Disposition disposition is for fair market value (as determined in good faith by the BorrowerIssuer or such Restricted Subsidiary), (B) if at the time of execution of a binding agreement in respect of such sale, transfer or other disposition, no Event of Default has occurred and is continuing or would result therefrom, (C) at least 75% of the consideration (other than (A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Issuer or any of its Restricted Subsidiaries and the valid release of the Issuer or such Restricted Subsidiary, by all applicable creditors in writing, from all liability on such Indebtedness or other liability in connection with such Disposition, (B) securities, notes or other obligations received by the Issuer or any of its Restricted Subsidiaries from the transferee that are converted by the Issuer or any of its Restricted Subsidiaries into cash or Cash Equivalents within 180 days following the closing of such Disposition, (C) [Reserved], (D) consideration consisting of Indebtedness of the Issuer (other than Subordinated Indebtedness) received after the Closing Date from Persons who are not the Issuer or any Restricted Subsidiary and (E) in connection with an asset swap, all of which shall be deemed “cash”) received is cash or Cash Equivalents or Designated Non-Cash Consideration to the extent that all Designated Non-Cash Consideration at such time does not exceed the greater of (x) $47,000,000 and (y) 32% of Consolidated EBITDA for the most recently ended four fiscal quarter period for which financial statements are available (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and all of the consideration received is at least equal to the fair market value of the assets sold, transferred or otherwise disposed of and (D) the Net Proceeds thereof shall be subject to Section 2.11(c);
(l) sales, transfers and other dispositions permitted by Section 6.03 (other than Section 6.03(a)(vii) or (b)(viii));
(m) the sale or exchange of specific items of property, so long as the purpose of each such sale or exchange is to acquire (and results within 365 days of such sale or exchange in the acquisition of) replacement items of property that are the functional equivalent of the item of property so sold or exchanged;
(n) the incurrence of Liens permitted hereunder;
(o) [reserved];
(p) [reserved];
(q) sales or dispositions of Equity Interests of any promissory note Subsidiary (other than the Issuer) in order to qualify members of the Governing Body of such Subsidiary if required by applicable law;
(r) samples, including time-limited evaluation software, provided to customers or prospective customers;
(s) de minimis amounts of equipment provided to employees;
(t) sales, transfers and other dispositions of any Equity Interests in Unrestricted Subsidiaries or their assets;
(u) Restricted Payments made pursuant to Section 6.08;
(v) Permitted Sale Leasebacks in an aggregate principal amount not to exceed the greater of $30,000,000 and 20% of Consolidated EBITDA;
(w) the unwinding of any Cash Management Services or Swap Agreement pursuant to its terms;
(x) sales, transfers or other non-cash consideration received dispositions of Investments in respect thereof is a permitted investment in a Restricted Joint Ventures or any Subsidiary that is not a Loan Party wholly owned Restricted Subsidiary to the extent required by, or made pursuant to customary buy/sell arrangements between, the parties set forth in accordance Joint Venture arrangements and similar binding agreements;
(y) the Issuer and any Restricted Subsidiary may (i) terminate or otherwise collapse its cost sharing agreements with Section 7.04the Issuer or any Subsidiary and settle any crossing payments in connection therewith, (ii) convert any intercompany Indebtedness to Equity Interests, (iii) transfer any intercompany Indebtedness to the Issuer or any Restricted Subsidiary, (iv) settle, discount, write off, forgive or cancel any intercompany Indebtedness or other obligation owing by the Issuer or any Restricted Subsidiary, (v) settle, discount, write off, forgive or cancel any Indebtedness owing by any present or former consultants, directors, officers or employees of any Parent Entity, Holdco, the Issuer or any Subsidiary or any of their successors or assigns or (vi) surrender or waive contractual rights and settle or waive contractual or litigation claims;
(z) any Disposition of Securitization Assets or Receivables Assets, or participations therein, in connection with any Qualified Securitization Financing or Receivables Facility, or the Disposition of an account receivable in connection with the collection or compromise thereof in the ordinary course of business or consistent with past practice;
(aa) [Reserved];
(bb) other Dispositions (including those of the type otherwise described herein) made after the Closing Date in an aggregate amount not to exceed the greater of (x) $6,500,000 and (y) the Consolidated EBITDA generated by or attributable to all such property Disposed of shall not exceed 4% of Consolidated EBITDA for the most recently ended four fiscal quarter period for which financial statements are available; and
(ecc) Dispositions permitted any swap of assets in exchange for services or other assets in the ordinary course of business of comparable or greater fair market value of usefulness to the business of Holdco and its Restricted Subsidiaries as a whole, as determined in good faith by Section 7.03, Investments permitted by Section 7.04, Restricted Payments permitted by Section 7.07 and Liens permitted by Section 7.02;the Issuer.
Appears in 1 contract
Sources: First Lien Note Purchase Agreement (KC Holdco, LLC)
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any assetasset (in one transaction or in a series of related transactions and whether effected pursuant to a Division or otherwise), including any Equity Interest owned by it or (ii) it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals or other Persons to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Holdings, the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its the Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, abandoned or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or property, (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement propertyproperty or (iii) such Disposition is allowable under Section 1031 of the Code, or any comparable or successor provision is for like property (and any boot thereon) and for use in a Similar Business;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments and prepayments, purchases and redemptions of Indebtedness permitted by Section 7.07 and 6.08, Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e);
(f) any issuance, sale or pledge of Equity Interests in, or Indebtedness, or other securities of, an Unrestricted Subsidiary;
(g) Dispositions of Permitted Investments;
(h) Dispositions of (A) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) and (B) receivables and related assets pursuant to any Permitted Receivables Financing;
(i) leases, subleases, service agreements, covenants not to ▇▇▇, licenses or sublicenses (including agreements involving the provision of software under an open source license, in copy or as a service, and related data and services), in each case that do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(k) Dispositions; provided that (i) such Disposition is made for Fair Market Value and (ii) except in the case of a Permitted Asset Swap, with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of the greater of (x) $12,500,000 and (y) 10% of Consolidated EBITDA for the most recently ended Test Period as of such time determined on a Pro Forma Basis for any transaction or series of related transactions, the Borrower or a Restricted Subsidiary shall receive not less than (I) 75% of such consideration in the form of cash or Permitted Investments for all transactions permitted pursuant to this clause (k) since the Effective Date or (II) 50% of such consideration for any individual transaction or series of related transactions in the form of cash or Permitted Investments; provided, however, that for the purposes of this clause (ii), (A) the greater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of the Borrower (or a Parent Entity) provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of the Borrower (or Parent Entity) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower, of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases the Borrower or such Restricted Subsidiary from such liabilities, (B) any securities received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash, (C) the amount of Indebtedness, other than liabilities that are by their terms subordinated to the Loan Document Obligations or any intercompany debt owed to the Borrower or any Restricted Subsidiary, that is of any Person, that is no longer a Restricted Subsidiary as a result of such Disposition, to the extent that the Borrower and all Restricted Subsidiaries have been validly released from any guarantee of payment of such Indebtedness in connection with such Disposition, (D) the amount of consideration consisting of Indebtedness of any Loan Party (other than Junior Financing) received after the Effective Date from Persons who are not the Borrower or any Restricted Subsidiary and (E) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of the greater of (x) $56,250,000 and (y) 45% of Consolidated EBITDA for the most recently ended Test Period as of such time determined on a Pro Forma Basis, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(l) Dispositions of Investments in joint ventures, to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of the Borrower and the Restricted Subsidiaries or (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(n) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(o) Dispositions by a captive insurance subsidiary of Investments;
(p) Dispositions of property for Fair Market Value not otherwise permitted under this Section 6.05 having an aggregate purchase price not to exceed the greater of (A) $18,750,000 and (B) 15% of Consolidated EBITDA for the most recently ended Test Period as of such time determined on a Pro Forma Basis;
(q) the sale or discount (with or without recourse) (including by way of assignment or participation) of other receivables (including, without limitation, trade and lease receivables) and related assets in connection with a Permitted Receivables Financing; and
(r) the unwinding of any Swap Obligations or Cash Management Obligations.
Appears in 1 contract
Sources: Credit Agreement (N-Able, Inc.)
Asset Sales. The Neither Payor nor any Borrower will, nor will not, and will not they permit any Payor Group Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any assetasset (other than assets sold, transferred, leased or otherwise disposed of in a single transaction or a series of related transactions with a fair market value of €20,000,000 or less), including any Equity Interest owned by it it, nor will Payor or (ii) any Borrower permit any Payor Group Restricted Subsidiary to issue any additional Equity Interest in such Payor Group Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Payor, a Borrower or a another Payor Group Restricted Subsidiary in compliance with Section 7.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaningSubsidiary), except:
(a) Dispositions sales, transfers, leases and other dispositions of (i) inventory, (ii) used, obsolete, damaged, used, surplus or worn out propertyor surplus equipment, whether now owned or hereafter acquired, and Dispositions of non-core assets or property, including assets or property, (iii) property no longer used or useful, or economically practicable to maintain, useful in the conduct of the core or principal business of Payor, the applicable Borrower and its the Payor Group Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or usefulintellectual property), or economically practicable to maintain, to lapse, go abandoned, or be invalidated);
(biv) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets and (considered v) cash and Permitted Investments, in the aggregate) each case in the ordinary course of business;
(b) sales, transfers, leases and other dispositions to Payor, a Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary that is not a Loan Party shall, to the extent applicable, be made in compliance with Section 3.04 and Section 3.09;
(c) Dispositions sales, transfers and other dispositions or forgiveness of accounts receivable in connection with the compromise, settlement or collection thereof not as part of any accounts receivables financing transaction (including sales to factors or other third parties);
(d) (i) sales, transfers, leases and other dispositions of assets to the extent that such assets constitute an investment permitted by clause (j), (l) or (n) of Section 3.04 or another asset received as consideration for the disposition of any asset permitted by this Section (in each case, other than Equity Interests in a Payor Group Restricted Subsidiary, unless all Equity Interests in such Payor Group Restricted Subsidiary (other than directors’ qualifying shares) are sold) and (ii) sales, transfers, and other dispositions of the Equity Interests of a Payor Group Restricted Subsidiary by Payor, a Borrower or a Payor Group Restricted Subsidiary to the extent such sale, transfer or other disposition would be permissible as an Investment in a Restricted Subsidiary permitted by Section 3.04(e) or Section 3.04(u);
(e) leases or subleases entered into in the ordinary course of business, to the extent that they do not materially interfere with the business of Payor, any Borrower or any Payor Group Restricted Subsidiary;
(f) non-exclusive licenses or sublicenses of IP Rights granted in the ordinary course of business or other licenses or sublicenses of IP Rights granted in the ordinary course of business that do not materially interfere with the business of Payor, any Borrower or any Payor Group Restricted Subsidiary;
(g) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, and transfers of property arising from foreclosure or similar action with regard to, any asset of Payor, any Borrower or any Payor Group Restricted Subsidiary;
(h) dispositions of assets to the extent that (i) such property is assets are exchanged for credit against the purchase price of similar replacement property assets or (ii) an amount equal to Net Proceeds the proceeds of such Disposition disposition are promptly applied to the purchase price of such replacement propertyassets;
(di) Dispositions dispositions permitted by Section 3.08;
(j) dispositions set forth on Schedule 6.05 of property to the Borrower or a Restricted SubsidiaryCurrent Credit Agreement (as in effect on the Distribution Date);
(k) sales, transfers, leases and other dispositions of assets that are not permitted by any other clause of this Section; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Partyaggregate fair value of all assets sold, transferred, leased or otherwise disposed of in reliance upon this Section 3.04(k) shall not exceed (A) in any fiscal year, 15% of Consolidated Total Assets as of the fiscal year most recently ended prior to such sale, transfer, lease or other disposition and (B) 40% of Consolidated Total Assets as of the fiscal year most recently ended prior to such sale, transfer, lease or other disposition and (ii) no Default or Event of Default has occurred and is continuing or would result therefrom;
(l) sales, transfers or other dispositions of accounts receivable in connection with Permitted Receivables Facilities;
(m) [reserved];
(n) sales, transfers or other dispositions of any assets (including Equity Interests) (A) acquired in connection with any acquisition or other investment permitted under Section 3.04, which assets are not used or useful to the core or principal business of the Swiss Borrower and the Payor Group Restricted Subsidiaries and/or (B) made to obtain the approval of any applicable antitrust authority in connection with an acquisition permitted under Section 3.04; and
(o) sales, transfers or other dispositions of Investments in joint ventures to the extent constituting an Investmentrequired by, such Investment must or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by Sections 3.05(a)(iii), (a)(iv) and (b)) for a purchase price in excess of €25,000,000 shall be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is made for fair market value (as determined in good faith by the Swiss Borrower), and at least 75% of the consideration from all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by clauses (b), (d), (g) and or (h)) since the Effective Date, on a cumulative basis, is in the form of cash or Permitted Investments; provided further that (i) any promissory note consideration in the form of Permitted Investments that are disposed of for cash consideration within 30 Business Days after such sale, transfer or other non-disposition shall be deemed to be cash consideration in an amount equal to the amount of such cash consideration for purposes of this proviso, (ii) any liabilities (as shown on Payor, such Borrower’s or such Payor Group Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of Payor, such Borrower or such Payor Group Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable sale, transfer, lease or other disposition and for which Payor, the Borrowers and all the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing shall be deemed to be cash consideration in an amount equal to the liabilities so assumed and (iii) any Designated Non-Cash Consideration received by Payor, such Borrower or such Subsidiary in respect thereof is a permitted investment in a Restricted Subsidiary of such sale, transfer, lease or other disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding, not a Loan Party in accordance excess of €45,000,000 at the time of the receipt of such Designated Non-Cash Consideration, with Section 7.04; (e) Dispositions permitted by Section 7.03the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, Investments permitted by Section 7.04, Restricted Payments permitted by Section 7.07 and Liens permitted by Section 7.02;shall be deemed to be cash consideration.
Appears in 1 contract
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a any Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
(a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its any Restricted Subsidiaries Subsidiary (including by ceasing to enforce, abandoning, allowing any registration to lapse, terminate or application for registration be invalidated, discontinuing the use or maintenance of or putting into the public domain, any Intellectual Property that is is, in the reasonable judgment of the Borrower or the Restricted Subsidiaries, no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidatedin respect of which the Borrower or any Restricted Subsidiary determines in its reasonable business judgment that such action or inaction is desirable);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a any Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value Fair Market Value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.07 and Liens permitted by Section 7.026.02;
(f) Dispositions of property acquired by the Borrower or any of the Restricted Subsidiaries after the Effective Date pursuant to sale-leaseback transactions;
(g) Dispositions of Permitted Investments;
(h) Dispositions or forgiveness of accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties);
(i) leases, subleases, service agreements, product sales, licenses or sublicenses (including licenses and sublicenses of Intellectual Property), in each case that do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events;
(k) Dispositions of property to Persons other than Restricted Subsidiaries (including the sale or issuance of Equity Interests of a Restricted Subsidiary) for Fair Market Value (as determined by a Responsible Officer of the Borrower in good faith) not otherwise permitted under this Section 6.05; provided that with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of $200,000,000, the Borrower or such Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that solely for the purposes of this clause (k),
(A) any liabilities (as shown on the most recent balance sheet of the Borrower or such Restricted Subsidiary or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the First Lien Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities, notes or other obligations or assets received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within one hundred and eighty (180) days following the closing of the applicable Disposition, shall be deemed to be cash, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to the Borrower or its Restricted Subsidiaries), to the extent that the Borrower and all of the Restricted Subsidiaries (to the extent previously liable thereunder) are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition, shall be deemed to be cash, (D) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value (as determined by a Responsible Officer of the Borrower in good faith), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess of $200,000,000 at the time of the receipt of such Designated Non-Cash Consideration, with the Fair Market Value (as determined by a Responsible Officer of the Borrower in good faith) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash and (E) to the extent required under the Existing Credit Agreement, at the time of and immediately after giving effect to such Disposition, no Default or Event of Default shall have occurred and be continuing;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) any Disposition of the Equity Interests of any Immaterial Subsidiary or Unrestricted Subsidiary;
(n) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment not prohibited hereunder, which assets are not used or useful to the core or principal business of the Borrower and the Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(i) any Disposition of accounts receivable, Securitization Assets, any participations thereof, or related assets in connection with or any Qualified Securitization Facility, (ii) the sale or discount of inventory, accounts receivable or notes receivable in the ordinary course of business (including sales to factors or other third parties) or in connection with any supplier and/or customer financing or (iii) the conversion of accounts receivable to notes receivable;
(p) transfers of condemned real property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of real property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement; and
(q) non-exclusive licenses or sublicenses, or other similar grants of rights, to Intellectual Property in the ordinary course of business.
Appears in 1 contract
Sources: Credit Agreement (Sotera Health Co)
Asset Sales. The Holdings and the Borrower will not, and nor will not they permit any Restricted Subsidiary to, to (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest owned by it it, or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such a Restricted Subsidiary (other than (A) issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than Law, (B) issuing Equity Interests to the Borrower Holdings or a any Restricted Subsidiary in compliance with Section 7.04(c6.01(b) or Section 6.04(c) and (C) any non-wholly-owned Restricted Subsidiary issuing Equity Interests of such Restricted Subsidiary to each owner of Equity Interests of such Restricted Subsidiary ratably based on their relative ownership interests)) , in each case, having a fair market value in excess of the greater of $7,500,000 and 5.0% of Consolidated EBITDA for the most recently ended Test Period, in a single transaction or a series of related transactions (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) i. Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, if made in the good faith determination of the board of directors of Holdings and/or in the ordinary course of business or consistent with past practice and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of Holdings and the Borrower and its Restricted Subsidiaries (including (i) allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidatedinvalidated or (ii) disposing of, discontinuing the use or maintenance of, abandoning, failing to pursue or otherwise allowing to lapse, expire, terminate or put into the public domain any of its Intellectual Property if Holdings determines in its reasonable business judgment that such discontinuance is desirable in the conduct of its business and does not materially interfere with the business of Holdings and the Restricted Subsidiaries, taken as a whole);
(b) ii. Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of businessincluding on an intercompany basis);
(c) iii. Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property property, or other assets of comparable or greater value or usefulness to the business or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) iv. Dispositions of property to the Borrower Holdings or a any Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 (other than clause (t) thereof) or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; (e) 6.04;
v. Dispositions permitted by Section 7.036.03 (other than clause (g) thereof), Investments permitted by Section 7.046.04 (other than clause (t) thereof), Restricted Payments permitted by Section 7.07 6.07 and Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e);
vi. Dispositions of cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
vii. Dispositions of (A) accounts receivable, notes receivable or other current assets in the ordinary course of business or consistent with industry practice or the conversion of accounts receivable to notes receivable or other dispositions of accounts receivable in connection with the collection or compromise thereof and (B) Permitted Receivables Financing Assets pursuant to any Permitted Receivables Financing;
viii. leases, subleases, licenses or sublicenses (on a non-exclusive basis), in each case in the ordinary course of business and that do not materially interfere with the business of Holdings and the Restricted Subsidiaries, taken as a whole;
ix. transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
x. Dispositions of other assets or property (including the sale or issuance of Equity Interests in a Restricted Subsidiary) not otherwise permitted under this Section 6.05 in an aggregate amount during the term of this Agreement not to exceed, at the time of the applicable Disposition, an amount equal to 15.0% of Consolidated Total Assets as of the end of the most recently ended Test Period; provided that (i) such Disposition is made for Fair Market Value, (ii) with respect to any Disposition pursuant to this Section 6.05(j) for a purchase price in excess of the greater of $10,000,000 and 1.0% of Consolidated Total Assets as of the end of the most recently ended Test Period for any transaction or series of related transactions, Holdings or any Restricted Subsidiary shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this Section 6.05(j)(ii), (A) any liabilities (as shown on the most recent balance sheet of the Borrower provided hereunder or in the footnotes thereto) of Holdings or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that (1) are assumed by the transferee with respect to the applicable Disposition or (2) are otherwise cancelled or terminated in connection with the transaction with such transferee, and for which Holdings and the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities received by Holdings or such Restricted Subsidiary from such transferee that are converted by Holdings or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by Holdings or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (j) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of the greater of $30,000,000 and 3.0% of Consolidated Total Assets as of the end of the most recently ended Test Period (net of any Designated Non-Cash Consideration converted into cash or Cash Equivalents), with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash, (iii) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.10(c) and (iv) no Event of Default shall have occurred and be continuing or would occur upon consummation of such Disposition;
xi. Dispositions of Investments in Joint Venture to the extent required by, or made pursuant to customary buy/sell arrangements between the Joint Venture parties set forth in, joint venture agreements and similar binding arrangements;
xii. Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not core or principal to the business of Holdings and the Restricted Subsidiaries or (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
xiii. transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
xiv. Dispositions in connection with any Tax Restructuring provided that after giving effect to any such Disposition, the Guarantees of the Loans and the security interests of the Lenders in the Collateral, taken as a whole, would not be adversely impaired;
xv. any Disposition of a Sale Leaseback;
xvi. any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
xvii. Holdings and each of the Restricted Subsidiaries may surrender or waive contractual rights and settle or waive contractual or litigation claims in the ordinary course of business or consistent with past practice;
xviii. the unwinding of any Swap Agreement pursuant to its terms; and xix. the disposition of any Investment acquired by virtue of any Bail-In Action with respect to any Lender. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.05 to any Person other than a Loan Party or Restricted Subsidiary, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing. Notwithstanding anything to the contrary, none of Holdings, the Borrower or any Restricted Subsidiary shall convey, invest, dispose of or otherwise transfer (including by way of an exclusive license) any Material IP to an Unrestricted Subsidiary (or in the case of any Material IP owned by any Loan Party to any non-Loan Party); provided that the foregoing shall not restrict any Loan Party from entering into any non-exclusive license of Material IP in the ordinary course of business.
Appears in 1 contract
Asset Sales. The Borrower will not, and nor will not it permit any of its Restricted Subsidiary to, Subsidiaries to (i) voluntarily sell, transfer, lease lease, license or otherwise dispose (including any disposition of property or assets to a Divided Delaware LLC pursuant to a Delaware LLC Division) of any asset, including any Equity Interest owned by it it, or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than (A) issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than Law, (B) issuing Equity Interests to the Borrower or a any Restricted Subsidiary in compliance with Section 7.04(c6.04(c) and (C) any non-wholly- owned Restricted Subsidiary issuing Equity Interests of such Subsidiary to each owner of Equity Interests of such Subsidiary ratably based on their relative ownership interests), in each case, having a Fair Market Value, in a single transaction or a series of related transactions, as of the date of such transaction(s) exceeding (x) $1,000,000, individually or (y) $2,500,000, in the aggregate in any fiscal year (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
: (a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, if made in good faith determination of the board of directors of the Borrower and/or in the ordinary course of business or consistent with past practice and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its the Restricted Subsidiaries (including (i) allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated);
invalidated or (ii) disposing of, discontinuing the use or maintenance of, abandoning, failing to pursue or otherwise allowing to lapse, expire, terminate or put into the public domain any of its Intellectual Property) if the Borrower determines in its reasonable business judgment that such discontinuance is desirable in the conduct of its business and does not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole; (b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
including on an intercompany basis); (c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property property, or other assets of comparable or greater value or usefulness to the business or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
; (d) If, and for so long as, a Suspension Period is not then in effect, Dispositions of property to the Borrower or any Restricted Subsidiary (for the avoidance of doubt, no transaction shall be made in reliance on this clause (d) during a Restricted SubsidiarySuspension Period); provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan PartyParty (other than Holdings), (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or 152 other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.046.04; (e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04 (other than clause (x) thereof), Restricted Payments permitted by Section 7.07 6.08 and Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e); (f) Dispositions of cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made; (g) sales, discounts of or forgiveness of customer delinquent notes or delinquent accounts receivable, notes receivable or other current assets in the ordinary course of business or consistent with industry practice or the conversion of delinquent accounts receivable to notes receivable or other dispositions of delinquent accounts receivable in connection with settlement, collection or compromise thereof; (h) leases, subleases, licenses or sublicenses, in each case in the ordinary course of business or consistent with past practice or that do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole; (i) transfers or other Dispositions of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event; (j) If, and for so long as, a Suspension Period is not then in effect, Dispositions of other assets or property (including the sale or issuance of Equity Interests in a Restricted Subsidiary) not otherwise permitted under this Section 6.05 having a Fair Market Value, in a single transaction or a series of related transactions, as of the date of such transaction(s), exceeding $20,000,000 in the aggregate in any fiscal year; provided that (i) such Disposition is made for Fair Market Value, (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of the greater of (x) $1,000,000 and (y) 2.5% of Consolidated Cash EBITDA for the Test Period most recently ended on or prior to the date of such Disposition based upon the financial statements most recently delivered (or required to have been delivered) on or prior to such date pursuant to Section 5.01(a) or (b), for any transaction or series of related transactions the Borrower or any Restricted Subsidiary shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (ii), (A) any liabilities (as shown on the most recent balance sheet of the Borrower provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that (1) are assumed by the transferee with respect to the applicable Disposition or (2) are otherwise cancelled or terminated in connection with the transaction with such transferee, and for which the Borrower and its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (j) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of the greater of (x) $1,000,000 and (y) 2.5% of Consolidated Total Assets for the Test Period most recently ended on or prior to the date of such Disposition (measured as of the date such Disposition is made based upon the financial statements most recently delivered (or required to have been delivered) on or prior to such date pursuant to Section 5.01(a) or (b)) (net of any Designated Non-Cash Consideration converted into cash or 153 Cash Equivalents), with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash, (iii) no Event of Default shall be continuing on the date of such Disposition (or if earlier, the date that the Borrower or its Restricted Subsidiary enters into a binding agreement to consummate such Disposition) or result from such Disposition, and (iv) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(c) (for the avoidance of doubt, no transaction shall be made in reliance on this clause (j) during a Suspension Period); (k) Dispositions of Investments in Joint Ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the Joint Venture parties set forth in, Joint Venture agreements and similar binding arrangements; (l) if, and for so long as, a Suspension Period is not then in effect, Dispositions of any assets (including Equity Interests) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not core or principal to the business of the Borrower and the Restricted Subsidiaries and do not exceed 30% of the assets acquired pursuant to such Permitted Acquisition or other Investment (for the avoidance of doubt, no transaction shall be made in reliance on this clause (l) during a Suspension Period); (m) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement; (n) if, and for so long as, a Suspension Period is not then in effect, Dispositions of assets that do not constitute Collateral (including Dispositions or issuance of Equity Interests in, Indebtedness of, other securities issued by, Unrestricted Subsidiaries) for Fair Market Value not in excess of $3,000,000(for the avoidance of doubt, no transaction shall be made in reliance on this clause (n) during a Suspension Period); (o) [Reserved]; (p) If, and for so long as, a Suspension Period is not then in effect, any Disposition of real property as a Sale Leaseback; provided that (i) such Sale Leaseback is made for Fair Market Value, (ii) not less than 75.0% of the consideration for such Sale Leaseback shall be received by the Borrower or its Restricted Subsidiaries shall be in the form of cash or Cash Equivalents, and (iii) any Financing Lease Obligations or Liens arising in connection therewith are permitted by Section 6.01 and 6.02, as the case may be (for the avoidance of doubt, no transaction shall be made in reliance on this clause (p) during a Suspension Period); (q) [Reserved]; (r) [Reserved]; (s) each Loan Party and each of its Restricted Subsidiaries may surrender or waive contractual rights and settle or waive contractual or litigation claims in the ordinary course of business or consistent with past practice; (t) the unwinding of any Swap Agreement pursuant to its terms;
Appears in 1 contract
Sources: Credit Agreement (GoHealth, Inc.)
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Holdings, the Borrower or a any Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
(a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets property no longer used or propertyuseful, or economically practicable or commercially desirable to maintain, in the conduct of the business of Holdings and any Restricted Subsidiary (including assets by ceasing to enforce, allowing the lapse, abandonment or propertyinvalidation of or discontinuing the use or maintenance of or putting into the public domain any Intellectual Property that is, in the reasonable judgment of the Borrower or the Restricted Subsidiaries, no longer used or useful, or economically practicable or commercially desirable to maintain, or in the conduct respect of the core or principal business of which the Borrower and or any Restricted Subsidiary determines in its Restricted Subsidiaries (including allowing any registration reasonable business judgment that such action or application for registration of any Intellectual Property that inaction is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidateddesirable);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property (or a functional equivalent of such property) or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property (or a functional equivalent of such property);
(d) Dispositions of property to the Borrower or a any Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.07 and Liens permitted by Section 7.026.02;
(f) Dispositions of property acquired by the Borrower or any of the Restricted Subsidiaries after the Effective Date pursuant to sale-leaseback transactions;
(g) Dispositions of Permitted Investments;
(h) Dispositions or forgiveness of accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties);
(i) leases, subleases, service agreements, product sales, transfers, licenses or sublicenses (including transfers, licenses and sublicenses of Intellectual Property), in each case that do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events;
(k) Dispositions of property (including the sale or issuance of Equity Interests of a Restricted Subsidiary) for fair market value (as determined by a Responsible Officer of the Borrower in good faith) not otherwise permitted under this Section 6.05; provided that with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of $5,000,000, the Borrower or such Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that solely for the purposes of this clause (k), (A) any liabilities (as shown on the most recent balance sheet of the Borrower or such Restricted Subsidiary or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities, notes or other obligations or assets received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within one hundred and eighty (180) days following the closing of the applicable Disposition, shall be deemed to be cash, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to the Borrower or its Restricted Subsidiaries), to the extent that the Borrower and all of the Restricted Subsidiaries (to the extent previously liable thereunder) are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition, shall be deemed to be cash, (D) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate fair market value (as determined by a Responsible Officer of the Borrower in good faith), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess of the greater of (A) $35,000,000 and (B) 25.0% of Consolidated EBITDA for the Test Period then last ended at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value (as determined by a Responsible Officer of the Borrower in good faith) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash, (E) consideration received in connection with an asset swap shall be deemed “cash” and (F) at the time of the execution of a binding agreement in respect of such Disposition, no Specified Event of Default shall have occurred and be continuing;
(l) Dispositions of Investments in joint ventures or non-wholly owned Subsidiaries to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets not constituting Collateral hereunder, provided that the aggregate fair market value (as determined in good faith by the Borrower) of all such Dispositions, in the aggregate, shall not be in excess of the greater of (A) $7,500,000 and (B) 7.5% of Consolidated EBITDA at the time of such Disposition;
(n) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment not prohibited hereunder, which assets are not used or useful to the core or principal business of the Borrower and the Restricted Subsidiaries or (B) made to obtain the approval of any applicable regulatory authority in connection with any acquisition or investment (including antitrust authorities, the FCC or FAA);
(i) any Disposition of accounts receivable, Securitization Assets, any participations thereof, or related assets in connection with any Qualified Securitization Facility or (ii) the sale or discount of inventory, accounts receivable or notes receivable in the ordinary course of business or the conversion of accounts receivable to notes receivable;
(p) transfers of condemned real property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of real property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(q) Dispositions constituting any part of a Permitted Reorganization;
(r) Dispositions of Unrestricted Subsidiaries (other than Unrestricted Subsidiaries the primary assets of which are Permitted Investments received from the Borrower or a Restricted Subsidiary) or assets acquired from Unrestricted Subsidiaries;
(s) any swap of assets in exchange for services or other assets in the ordinary course of business of comparable or greater fair market value of usefulness to the business of the Borrower and its Restricted Subsidiaries, taken as a whole, as determined in good faith by the Borrower; provided that the aggregate fair market value (as determined in good faith by the Borrower) of all assets constituting Collateral that are exchanged for other assets not constituting Collateral pursuant to this clause (s) shall not exceed the greater of (x) $14,000,000 and (y) 10.0% of Consolidated EBITDA at the time of such swap of assets;
(t) other Dispositions in an aggregate amount not be in excess of the greater of (A) $50,000,000 and (B) 36.0% of Consolidated EBITDA at the time of such Disposition;
(u) samples, including time-limited evaluation software, provided to customers or prospective customers;
(v) de minimis amounts of equipment or other assets provided to employees;
(w) the unwinding of any Cash Management Obligations or Swap Agreement pursuant to its terms;
(x) sales, transfers, leases or other dispositions to the Borrower or a Restricted Subsidiary pursuant to Intercompany License Agreements;
(y) the Borrower and any Restricted Subsidiary may (i) terminate or otherwise collapse its cost sharing agreements with the Borrower or any Restricted Subsidiary and settle any crossing payments in connection therewith, (ii) convert any intercompany Indebtedness to Equity Interests, (iii) transfer any intercompany Indebtedness to the Borrower or any Restricted Subsidiary, (iv) settle, discount, write off, forgive or cancel any intercompany Indebtedness or other obligation owing by the Borrower or any Restricted Subsidiary, (v) settle, discount, write off, forgive or cancel any Indebtedness owing by any present or former consultants, directors, officers or employees, the Borrower or any Restricted Subsidiary or any of their successors or assigns or (vi) surrender or waive contractual rights and settle or waive contractual or litigation claims;
(z) Dispositions set forth on Schedule 6.05; and
(aa) the sale, lease, assignment, license, sublease or discount of inventory, equipment, accounts receivable, notes receivable or other current assets in the ordinary course of business or consistent with industry practice or the conversion of accounts receivable to notes receivable or other dispositions of accounts receivable in connection with the collection thereof. Notwithstanding anything to the contrary in this Agreement, (i) no Loan Party shall Dispose of any Material IP or FCC Licenses at any time to a non-Loan Party Subsidiary, other than non-exclusive licensing of intellectual property in the ordinary course of business and (ii) all Material IP, exclusive licenses to Material IP (in each case, other than the grant of a non-exclusive license of such Material IP in the ordinary course of business) and FCC Licenses, in each case, shall at all times be owned or held by Loan Parties.
Appears in 1 contract
Sources: Credit Agreement (Gogo Inc.)
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
(a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, and Dispositions of non-core assets or property, including assets or property, no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; ;
(e) Dispositions permitted by Section 7.03, Investments permitted by Section 7.04, Restricted Payments permitted by Section 7.07 and Liens permitted by Section 7.02;
(f) Dispositions of property acquired by the Borrower or any of the Restricted Subsidiaries after the Closing Date pursuant to sale-leaseback transactions;
(g) Dispositions of Permitted Investments;
(h) Dispositions or forgiveness of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof (including sales to factors or other third parties);
(i) leases, subleases, service agreements, product sales, licenses or sublicenses (including licenses and sublicenses of Intellectual Property), in each case that do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events;
(k) so long as no Event of Default shall have occurred and be continuing or would result therefrom (at the time of execution of a binding agreement in respect of such Disposition), Dispositions of property to Persons other than Restricted Subsidiaries (including the sale or issuance of Equity Interests of a Restricted Subsidiary) for fair market value (as determined by a Responsible Officer of the Borrower in good faith) not otherwise permitted under this Section 7.05; provided that with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of the greater of $135,000,000 and 13.5% of Consolidated EBITDA for the most recently ended Test Period as of such time, the Borrower or any Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that solely for the purposes of this clause (k), (A) any liabilities (as shown on the most recent balance sheet of the Borrower or such Restricted Subsidiary or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities, notes or other obligations or assets received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within one hundred and eighty (180) days following the closing of the applicable Disposition, shall be deemed to be cash, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to the Borrower or its Restricted Subsidiaries), to the extent that the Borrower and all of the Restricted Subsidiaries (to the extent previously liable thereunder) are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition, shall be deemed to be cash and (D) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate fair market value (as determined by a Responsible Officer of the Borrower in good faith), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess of the greater of $135,000,000 and 13.5% of Consolidated EBITDA for the most recently ended Test Period as of such time at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value (as determined in good faith by the Borrower) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash; provided, further, that if assets of a type that would comprise ABL Collateral are disposed of with an aggregate value of more than the greater of $100,000,000 and 7.5% of the Borrowing Base since the date of the most recent delivery of a Borrowing Base Certificate, to the extent and for so long as the Borrowing Base is an amount less than 120.0% of the Maximum Borrowing Amount, the Borrower shall provide an updated Borrowing Base Certificate pro forma for such Disposition within three (3) days of such Disposition.
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) other Dispositions so long as (i) such Dispositions do not constitute a sale of all or substantially all of the Borrower’s assets and (ii) the applicable Payment Conditions are satisfied on a Pro Forma Basis;
(n) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment not prohibited hereunder, which assets are not used or useful to the core or principal business of the Borrower and its Restricted Subsidiaries and/or (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(o) any Disposition of Securitization Assets or any participations thereof by a Restricted Subsidiary that is not a Loan Party in connection with or any Qualified Securitization Facility;
(p) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement; and
(q) any Disposition of the Equity Interests of any Immaterial Subsidiary or Unrestricted Subsidiary.
Appears in 1 contract
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (including, in each case, pursuant to a Delaware LLC Division) (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its the Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, abandoned or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or property, (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement propertyproperty or (iii) such Disposition is allowable under Section 1031 of the Code, or any comparable or successor provision is for like property (and any boot thereon) and for use in a Similar Business;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary (including as a result of a Delaware LLC Division);
(e) Dispositions permitted by Section 6.03, Investments permitted by Section 6.04, Restricted Payments permitted by Section 6.08, Liens permitted by Section 6.02, in each case, other than by reference to this Section 6.05(e);
(f) any issuance, sale, pledge or other Disposition of Equity Interests in, or Indebtedness, or other securities of, an Unrestricted Subsidiary; provided that if ;
(g) Dispositions of Permitted Investments;
(h) Dispositions of (A) accounts receivable in connection with the transferor in such a transaction is a Loan Party, then either collection or compromise thereof (including sales to factors or other third parties) and (B) receivables and related assets pursuant to any Permitted Receivables Financing;
(i) leases, subleases, licenses or sublicenses (including the transferee must be provision of software under an open source license), in each case in the ordinary course of business and that do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a Loan Party, whole;
(iij) transfers of property subject to Casualty Events upon receipt of the extent constituting an Investment, Net Proceeds of such Investment must be a permitted Investment Casualty Event;
(k) Dispositions of property to Persons other than the Borrower or any of the Restricted Subsidiaries (including (x) the sale or issuance of Equity Interests in a Restricted Subsidiary that and (y) any Sale Leaseback) not otherwise permitted under this Section 6.05; provided that
(i) such Disposition is not made for Fair Market Value and
(ii) except in the case of a Loan Party Permitted Asset Swap, a Sale Leaseback or the Disposition of a Multiplex theatre, with respect to any Disposition pursuant to this clause (l) for a purchase price in accordance with Section 7.04 excess of the greater of (x) $50,000,000 and (y) 5% of Consolidated EBITDA for the most recently ended Test Period for all transactions permitted pursuant to this clause (l) since the Effective Date, the Borrower or (iii) to the extent constituting a Disposition to a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that is not for the purposes of this clause (ii),
(A) the greater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of the Borrower (or a Loan PartyParent Entity) provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such Disposition is for fair market value liabilities that would have been reflected on the balance sheet of the Borrower (or Parent Entity) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Loan Document Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases the Borrower or such Restricted Subsidiary from such liabilities,
(B) any securities received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and
(C) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (l) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of 5% of Consolidated Total Assets for the most recently ended Test Period as of the time of receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any promissory note assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other non-cash consideration received Investment permitted hereunder, which assets are not used or useful to the core or principal business of the Borrower and the Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority or otherwise required by a Governmental Authority in connection with a Permitted Acquisition;
(n) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(o) Dispositions of property for Fair Market Value not otherwise permitted under this Section 6.05 having an aggregate purchase price not to exceed the greater of (A) $200,000,000 and (B) 20% of Consolidated EBITDA (or, at any time prior to the 2026 Notes Covenant Discharge, (i) the greater of $200,000,000 and 20% of Consolidated EBITDA with respect thereof is a permitted investment to Dispositions of property other than any interest in a Restricted European Subsidiary that is (or the assets thereof) and (ii) $10,000,000 with respect to Dispositions of any interest in a European Subsidiary (or the assets thereof)) for the most recently ended Test Period at the time of such Disposition;
(p) the sale or discount (with or without recourse) (including by way of assignment or participation) of other receivables (including, without limitation, trade and lease receivables) and related assets in connection with a Permitted Receivables Financing;
(q) the unwinding of any Swap Obligations or Cash Management Obligations; and
(r) disposition of any assets for not a Loan Party in accordance with Section 7.04; (e) Dispositions permitted by Section 7.03, Investments permitted by Section 7.04, Restricted Payments permitted by Section 7.07 and Liens permitted by Section 7.02;less than the Fair Market Value of assets set forth on Schedule 6.05.
Appears in 1 contract
Sources: Credit Agreement (Amc Entertainment Holdings, Inc.)
Asset Sales. The Holdings and the Borrower will not, and nor will not they permit any Restricted Subsidiary to, to (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest owned by it it, or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such a Restricted Subsidiary (other than (A) issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than Law, (B) issuing Equity Interests to the Borrower Holdings or a any Restricted Subsidiary in compliance with Section 7.04(c6.01(b) or Section 6.04(c) and (C) any non-wholly-owned Restricted Subsidiary issuing Equity Interests of such Restricted Subsidiary to each owner of Equity Interests of such Restricted Subsidiary ratably based on their relative ownership interests)) , in each case, having a fair market value in excess of the greater of $5,000,000 and 1.0% of Consolidated Total Assets for the most recently ended Test Period, in a single transaction or a series of related transactions (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, if made in the good faith determination of the board of directors of Holdings and/or in the ordinary course of business or consistent with past practice and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of Holdings and the Borrower and its Restricted Subsidiaries (including (i) allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated)invalidated or (ii) disposing of, discontinuing the use or maintenance of, abandoning, failing to pursue or otherwise allowing to lapse, expire, terminate or put into the public domain any of its Intellectual Property if Holdings determines in its reasonable business judgment that such discontinuance is desirable in the conduct of its business and does not materially interfere with the business of Holdings and the Restricted Subsidiaries, taken as a whole;
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of businessincluding on an intercompany basis);
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property property, or other assets of comparable or greater value or usefulness to the business or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower Holdings or a any Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.08 and Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e);
(f) Dispositions of cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions of (A) accounts receivable, notes receivable or other current assets in the ordinary course of business or consistent with industry practice or the conversion of accounts receivable to notes receivable or other dispositions of accounts receivable in connection with the collection or compromise thereof and (B) Permitted Receivables Financing Assets pursuant to any Permitted Receivables Financing;
(h) leases, subleases, licenses or sublicenses, in each case in the ordinary course of business and that do not materially interfere with the business of Holdings and the Restricted Subsidiaries, taken as a whole;
(i) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(j) Dispositions of other assets or property (including the sale or issuance of Equity Interests in a Restricted Subsidiary) not otherwise permitted under this Section 6.05; provided that (i) such Disposition is made for Fair Market Value, (ii) with respect to any Disposition pursuant to this Section 6.05(j) for a purchase price in excess of the greater of $5,000,000 and 1.0% of Consolidated Total Assets for the most recently ended Test Period for any transaction or series of related transactions, Holdings or any Restricted Subsidiary shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this Section 6.05(j)(ii), (A) any liabilities (as shown on the most recent balance sheet of the Borrower provided hereunder or in the footnotes thereto) of Holdings or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that (1) are assumed by the transferee with respect to the applicable Disposition or (2) are otherwise cancelled or terminated in connection with the transaction with such transferee, and for which Holdings and the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities received by Holdings or such Restricted Subsidiary from such transferee that are converted by Holdings or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by Holdings or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (j) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of the greater of $15,000,000 and 3.0% of Consolidated Total Assets for the most recently ended Test Period (net of any Designated Non-Cash Consideration converted into cash or Cash Equivalents), with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash and (iii) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(k) Dispositions of Investments in Joint Venture to the extent required by, or made pursuant to customary buy/sell arrangements between the Joint Venture parties set forth in, joint venture agreements and similar binding arrangements;
(l) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not core or principal to the business of Holdings and the Restricted Subsidiaries or (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(m) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(n) Dispositions of assets that do not constitute Collateral (including Equity Interests in Unrestricted Subsidiaries) for Fair Market Value;
(o) Dispositions in connection with the Transactions or any Tax Restructuring provided that after giving effect to any such Disposition, the Guarantees of the Loans and the security interests of the Lenders in the Collateral, taken as a whole, would not be adversely impaired;
(p) any Disposition of a Sale Leaseback;
(q) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(r) [reserved];
(s) Holdings and each of the Restricted Subsidiaries may surrender or waive contractual rights and settle or waive contractual or litigation claims in the ordinary course of business or consistent with past practice; and
(t) the unwinding of any Swap Agreement pursuant to its terms. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.05 to any Person other than a Loan Party or Restricted Subsidiary, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any assetasset (in one transaction or in a series of related transactions and whether effected pursuant to a Division or otherwise), including any Equity Interest owned by it or (ii) it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals or other Persons to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Holdings, the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(iii)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its the Restricted Subsidiaries (including allowing any Intellectual Property (and any related registration or application for registration of any Intellectual Property application) that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, abandoned or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or property, (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement propertyproperty or (iii) such Disposition qualifies for non-recognition treatment under Section 1031 of the Code, or any comparable or successor provision for like-kind property (and any boot thereon) and for use in a Similar Business;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition (A) is for fair market value Fair Market Value and (as determined in good faith by the BorrowerB) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments and prepayments, purchases and redemptions of Indebtedness permitted by Section 7.07 6.08, and Liens ▇▇▇▇▇ permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e);
(f) any issuance, sale or pledge of Equity Interests in, or Indebtedness, or other securities of, an Unrestricted SubsidiaryDispositions of property and assets set forth in Schedule 6.05(f);
(g) Dispositions of Permitted Investments;
(h) Dispositions of (A) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties), but other than pursuant to a factoring or receivables financing transaction and (B) receivables and related assets pursuant to any Permitted Receivables Financing;
(i) leases, subleases, service agreements, covenants not to sue, licenses or sublicenses (including agreements involving the provision of software under an open source license, in copy or as a service, and related data and services), in each case that do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(k) other Dispositions to third parties that are not Affiliates of the Borrower or any of its Subsidiaries; provided that (i) such Disposition is made for Fair Market Value and (ii) except in the case of a Permitted Asset Swap, with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of the greater of (x) $10,000,000 and (y) 1.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period as of such time determined on a Pro Forma Basis for any transaction or series of related transactions, the Borrower or a Restricted Subsidiary shall receive not less than (I) 75% of such consideration in the form of cash or Permitted Investments for all transactions permitted pursuant to this clause (k) since the Effective Date or (II) 50% of such consideration for any individual transaction or series of related transactions in the form of cash or Permitted Investments; provided, however, that for the purposes of this clause (ii), (A) the greater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of the Borrower (or a Parent Entity) provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of the Borrower (or a Parent Entity) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower, of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases the Borrower or such Restricted Subsidiary from such liabilities, (B) any securities received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash, (C) the amount of Indebtedness, other than liabilities that are by their terms subordinated to the Loan Document Obligations or any intercompany debt owed to the Borrower or any Restricted Subsidiary, that is of any Person that is no longer a Restricted Subsidiary as a result of such Disposition, to the extent that the Borrower and all Restricted Subsidiaries have been validly released from any guarantee of payment of such Indebtedness in connection with such Disposition, (D) the amount of consideration consisting of Indebtedness of any Loan Party (other than Junior Financing) received after the Effective Date from Persons who are not the Borrower or any Restricted Subsidiary and (E) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of the greater of (x) $20,000,000 and (y) 3.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period as of such time determined on a Pro Forma Basis, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of the Borrower and the Restricted Subsidiaries or (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(n) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(o) Dispositions by a captive insurance subsidiary of Investments;
(p) Dispositions to third parties that are not Affiliates of the Borrower or any of its Subsidiaries of property for Fair Market Value not otherwise permitted under this Section 6.05 having an aggregate purchase price not to exceed the greater of (A) $20,000,000 and (B) 3.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period as of such time determined on a Pro Forma Basis;
(q) the sale or discount (with or without recourse) (including by way of assignment or participation) of other receivables (including, without limitation, trade and lease receivables) and related assets in connection with a Permitted Receivables Financing; and
(r) the unwinding of any Swap Obligations or Cash Management Obligations.
Appears in 1 contract
Sources: Credit Agreement (Vacasa, Inc.)
Asset Sales. The Neither Holdings nor the Borrower will, nor will not, and will not they permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (including, in each case, pursuant to a Delaware LLC Division) (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals or other Persons to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Holdings, the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of Holdings, the Borrower and its the Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is either no longer used or useful, or no longer economically practicable to maintain, to lapse, go abandoned, or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or property, (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement propertyproperty or (iii) such property is exchanged for other property that may be used in a Similar Business (and any boot thereon) and such exchange qualifies for non-recognition under Section 1031 of the Code, or any comparable or successor provision;
(d) Dispositions of property to Holdings, the Borrower or a Restricted SubsidiarySubsidiary (including as a result of a Delaware LLC Division); provided that if any Disposition by the transferor in such a transaction is a Borrower or any other Loan Party, then either (i) the transferee must be a Loan Party, (ii) Party to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party shall be permitted by Section 6.03 and Section 6.04 or otherwise shall be for Fair Market Value;
(e) Dispositions permitted by Section 6.03, Investments permitted by Section 6.04, Restricted Payments and prepayments and redemptions of Indebtedness permitted by Section 6.07 and Liens permitted by Section 6.02, in accordance each case, other than by reference to this Section 6.05(e);
(f) any issuance, sale or pledge of Equity Interests in, or Indebtedness, or other securities of, an Unrestricted Subsidiary;
(g) Dispositions of Permitted Investments;
(h) Dispositions of accounts receivable in connection with Section 7.04 the collection or compromise thereof (iiiincluding sales to factors or other third parties);
(i) leases, subleases, service agreements, covenants not to ▇▇▇, licenses or sublicenses (including agreements involving the extent constituting provision of software in copy or as a Disposition service, and related data and services), in each case that do not materially interfere with the business of Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(k) Dispositions of property to Persons other than Holdings, the Borrower or any of the Restricted Subsidiaries (including (x) the sale or issuance of Equity Interests of a Restricted Subsidiary and (y) any Sale Leaseback) not otherwise permitted under this Section 6.05; provided that is not a Loan Party, (i) such Disposition is made for fair market Fair Market Value and (ii) except in the case of a Permitted Asset Swap, with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of the greater of (x) $4,000,000 and (y) 5.0% of Consolidated EBITDA for the Test Period then last ended determined on a Pro Forma Basis for any transaction or series of related transaction, the Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that for the purposes of this clause (ii), (A) the greater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of Holdings or Parent (or other Parent Entity) provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of Holdings or Parent (or other Parent Entity) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower, of the Borrower, Holdings or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases Holdings, the Borrower and such Restricted Subsidiary from such liabilities, (B) any promissory note securities received by Holdings, the Borrower or such Restricted Subsidiary from such transferee that are converted by Holdings, the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash, (C) the amount of Indebtedness, other non-cash consideration received in respect thereof than liabilities that are by their terms subordinated to the Loan Document Obligations, that is a permitted investment in of any Person that is no longer a Restricted Subsidiary as a result of such Disposition, to the extent that Holdings, the Borrower and all Restricted Subsidiaries have been validly released from any guarantee of payment of such Indebtedness in connection with such Disposition, (D) the amount of consideration consisting of Indebtedness of any Loan Party (other than Junior Financing) received after the Effective Date from Persons who are not Holdings, the Borrower or any Restricted Subsidiary and (E) any Designated Non-Cash Consideration received by Holdings, the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of 5.0% of Consolidated Total Assets for the Test Period then last ended determined on a Loan Party Pro Forma Basis as of the time of the receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in accordance with Section 7.04; value, shall be deemed to be cash;
(el) Dispositions of Investments in joint ventures, including to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of Holdings, the Borrower and the Restricted Subsidiaries or (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(n) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(o) Dispositions by a captive insurance subsidiary of Investments;
(p) Dispositions of property for Fair Market Value not otherwise permitted under this Section 7.03, Investments permitted by Section 7.04, Restricted Payments permitted by Section 7.07 6.05 having an aggregate purchase price not to exceed the greater of (A) $12,000,000 and Liens permitted by Section 7.02(B) 15.0% of Consolidated EBITDA for the most recently ended Test Period at the time of such Disposition determined on a Pro Forma Basis;
(q) the unwinding of any Swap Obligations or Cash Management Obligations; and
(r) Holdings and its Subsidiaries may undertake or consummate any IPO Reorganization Transactions and any transaction related thereto or contemplated thereby.
Appears in 1 contract
Sources: Credit Agreement (EverCommerce Inc.)
Asset Sales. The (a) Neither Holdings nor the Borrower will, nor will not, and will not they permit any Restricted Subsidiary or Intermediate Parent, to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Holdings, the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property that is no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of Holdings, any Intermediate Parent, the Borrower and its the Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04 (other than Section 6.04(u)), Restricted Payments permitted by Section 7.07 6.08(a), Restricted Debt Payments permitted by Section 6.08(b) and Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05;
(f) [reserved];
(g) Dispositions of Permitted Investments in the ordinary course of business;
(h) Dispositions of (A) accounts receivable in the ordinary course of business in connection with the collection or compromise thereof (excluding sales to factors or other third parties) and (B) accounts receivables and related assets pursuant to any Permitted Receivables Financing;
(i) leases, subleases, non-exclusive licenses or sublicenses, in each case, in the ordinary course of business and that, individually or in the aggregate, do not materially interfere with the business of Holdings, the Intermediate Parents, the Borrower and the Restricted Subsidiaries;
(j) Dispositions of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(k) Dispositions of property to Persons other than Holdings, the Borrower or any of the Restricted Subsidiaries (including the sale or issuance of Equity Interests in a Restricted Subsidiary) not otherwise permitted under this Section 6.05 in an aggregate principal amount not to exceed $5,000,000 during the term of this Agreement; provided that (i) such Disposition is made for Fair Market Value and (ii) the Borrower or a Restricted Subsidiary shall receive not less than 90% of such consideration in the form of cash or Permitted Investments;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) [reserved];
(n) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(o) [reserved]; and
(p) [reserved]. Notwithstanding the foregoing or anything else in this Agreement or the other Loan Documents to the contrary, Holdings, the Borrower, and each Subsidiary and any Intermediate Parent will comply with the Material Intellectual Property Provision. Notwithstanding the foregoing or anything else in this Agreement or the other Loan Documents to the contrary, for purposes of this Section 6.05, the Foreign Guarantors will be deemed to be Subsidiaries of the Borrower that are not Loan Parties.
Appears in 1 contract
Sources: Senior Secured Debtor in Possession Credit Agreement (Cyxtera Technologies, Inc.)
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, and Holdings will not permit Public Sector to, (i) voluntarily sell, transfer, lease lease, license, abandon, allow to lapse or be invalidated or otherwise dispose (including pursuant to a division) of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
: (a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, useful to lapse, go abandoned, or be invalidated);
; (b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
; (c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
; (d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.046.04; -153- (e) Dispositions permitted by Section 7.03, 6.03 and Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.07 and Liens permitted by Section 7.026.02; (f) Dispositions of property pursuant to sale and leaseback transactions permitted by Section 6.06 hereto; (g) Dispositions of Permitted Investments; (h) Dispositions of accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties); (i) leases, subleases, service agreements, product sales, abandonments, licenses, sublicenses or other disposals (including, with respect to of Intellectual Property, non-exclusive licenses and sublicenses only), in each case that do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole; (j) transfers of property subject to Casualty Events; (k) Dispositions of property to Persons other than Restricted Subsidiaries (including the sale or issuance of Equity Interests of a Restricted Subsidiary) for fair market value (as determined by a Responsible Officer of the Borrower in good faith) not otherwise permitted under this Section 6.05; provided that with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of (x) with respect to any single transaction or series of related transactions, the greater of $6,250,000 and 5.0% of the Consolidated EBITDA as of the most recently ended Test Period, or (y) with respect to all other Dispositions in any fiscal year not excluded from the requirements of this proviso pursuant to the immediately preceding subclause (x), the greater of $12,500,000 and 10.0% of the Consolidated EBITDA as of the most recently ended Test Period, the Borrower or any Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that solely for the purposes of this clause (k), (A) any liabilities (as shown on the most recent balance sheet of the Borrower or such Restricted Subsidiary or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities, notes or other obligations or assets received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within one hundred and eighty (180) days following the closing of the applicable Disposition, shall be deemed to be cash, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to the Borrower or its Restricted Subsidiaries), to the extent that the Borrower and all of the Restricted Subsidiaries (to the extent previously liable thereunder) are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition, shall be deemed to be cash and (D) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate fair market value (as determined by a Responsible Officer of the Borrower in good faith), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess of the greater of $25,000,000 and 20.0% of Consolidated EBITDA at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value (as determined in good faith by the Borrower) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
Appears in 1 contract
Asset Sales. The Borrower will not, and nor will not it permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any assetasset (in one transaction or in a series of related transactions and whether effected pursuant to a Division or otherwise), including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ Rest qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
Disposition (a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its the Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, abandoned or be invalidated);
; (b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
; (c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or property, (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;property or (iii) such Disposition is allowable under Section 1031 of the Code, or any comparable or successor provision is for like property (and any boot thereon) and for use in a Similar Business; -115- US-DOCS\114614260.17
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.046.04; (e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 and 6.08, Liens permitted by Section 7.02;6.02, in each case, other than by reference to this Section 6.05(e); (f) any issuance, sale or pledge of Equity Interests in, or Indebtedness, or other securities of, an Unrestricted Subsidiary; (g) Dispositions of Permitted Investments; (h) Dispositions of (A) accounts receivable in connection with the collection or compromise thereof and (B) receivables and related assets pursuant to any Permitted Receivables Financing; (i) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and that do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole; (j) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event; (k) Dispositions of property to Persons other than the Borrower or any of the Restricted Subsidiaries (including (x) the sale or issuance of Equity Interests in a Restricted Subsidiary and (y) any Sale Leaseback) not otherwise permitted under this Section 6.05; provided that (i) such Disposition is made for Fair Market Value and (ii) with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of the greater of (x) $13,750,000 and (y) 5% of Consolidated EBITDA for the most recently ended Test Period for all transactions permitted pursuant to this clause (k) since the Effective Date, the Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that for the purposes of this clause (ii), (A) the greater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of the Borrower provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of Borrower or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Loan Document Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases the Borrower or such Restricted Subsidiary from such liabilities, (B) any securities received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (l) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of 5% of Consolidated Total Assets for the most recently ended Test Period as of the time of receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash; (l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements; -116- US-DOCS\114614260.17
Appears in 1 contract
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, (i) voluntarily sell, transfer, lease or otherwise dispose (including pursuant to a division) of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
(a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, be dedicated to the public domain or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.03, 6.03 and Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.07 and Liens permitted by Section 7.026.02;
(f) Dispositions of property pursuant to sale and leaseback transactions permitted by Section 6.06 hereto;
(g) Dispositions of Permitted Investments;
(h) Dispositions of accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties);
(i) leases, subleases, service agreements, product sales, abandonments, licenses, sublicenses or other disposals (including of Intellectual Property), in each case, (A) granted in the ordinary course of business or (B) that do not materially interfere with the business of the Borrower and its Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events;
(k) Dispositions of property to Persons other than Subsidiaries (including the sale or issuance of Equity Interests of a Subsidiary and including the sale of real property) for fair market value (as determined by a Responsible Officer of the Lead Borrower in good faith) not otherwise permitted under this Section 6.05; provided that with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of (x) with respect to any single transaction or series of related transactions, $10,000,000 or (y) with respect to all other Dispositions in any fiscal year of the Lead Borrower not excluded from the requirements of this proviso pursuant to the immediately preceding subclause (x), $20,000,000, the Borrower or any Subsidiary shall receive not less than 75% of such consideration in excess of the amounts referred to subclauses (x) and (y) in the form of cash or Permitted Investments; provided, however, that solely for the purposes of this clause (k), (A) any liabilities (as shown on the most recent balance sheet of the Borrower or such Subsidiary or in the footnotes thereto) of the Borrower or such Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities, notes or other obligations or assets received by the Borrower or such Subsidiary from such transferee that are converted by the Borrower or such Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within one hundred and eighty (180) days following the closing of the applicable Disposition, shall be deemed to be cash, (C) Indebtedness of any Subsidiary that ceases to be a Subsidiary as a result of such Disposition (other than intercompany debt owed to the Borrower or its Subsidiaries), to the extent that the Borrower and all of the Subsidiaries (to the extent previously liable thereunder) are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition, shall be deemed to be cash and (D) any Designated Non-Cash Consideration received by the Borrower or such Subsidiary in respect of such Disposition having an aggregate fair market value (as determined by a Responsible Officer of the Lead Borrower in good faith), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess of $25,000,000, with the fair market value (as determined in good faith by the Lead Borrower) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash; provided, further, that, other than in respect of the Disposition described on Schedule 6.05(k), no Event of Default shall have occurred and be continuing at the time of, and after giving effect to, any Disposition made pursuant to this clause (k);
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions or forgiveness of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof;
(n) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment not prohibited hereunder, which assets are not used or useful to the core or principal business of the Borrower and its Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(o) Dispositions of assets that are not Collateral in an aggregate amount not to exceed the greater of $8,000,000 and 2.5% of Consolidated EBITDA for the most recently ended Test Period in any fiscal year of the Lead Borrower;
(p) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(q) any Disposition of the Equity Interests of any Immaterial Subsidiary;
(r) other Dispositions in an aggregate amount not to exceed the greater of $8,000,000 and 2.5% of Consolidated EBITDA for the most recently ended Test Period in any fiscal year of the Lead Borrower;
(s) the sale by the Liberty Parties of Liberty Area Development Rights, Liberty Franchise Rights, and store locations (and customer lists and other assets related thereto), in each case in the ordinary course of business and consistent with past practice; provided further that no Event of Default under paragraph (a), (b), (d) (solely as a result of an Event of Default due to failure to comply with a Financial Maintenance Covenant, subject to the cure rights set forth in Section 7.02 and solely after the expiration of the applicable Cure Expiration Date), (h) or (i) of Section 7.01 shall have occurred and be continuing at the time of, and after giving effect to, any Disposition made pursuant to this clause (s); and
(t) sales or other dispositions by any Borrower or any Subsidiary of assets in connection with the closing or sale of a retail store location (the closure of a store is not in and of itself the disposition of assets), warehouse, distribution center or corporate office of such Borrower or Subsidiary in the ordinary course of business of such Borrower or Subsidiary, which sale or disposition consists of leasehold interests in the premises of such store or distribution center, the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such store or distribution center; provided, that, such sale shall be on commercially reasonable prices and terms in a bona fide arm’s length transaction. Notwithstanding anything to the contrary in this Section 6.05, other than by virtue of the sale of the Equity Interests of, or all or substantially all of the assets of, one or more Subsidiaries in a transaction not prohibited by this Agreement, no Loan Party shall, directly or indirectly, sell or otherwise transfer (except for non-exclusive leases or non-exclusive licenses with respect thereto) any Material Intellectual Property as of the Effective Date or any interest in any Franchise Agreement to any non-Loan Party.
Appears in 1 contract
Sources: First Lien Credit Agreement (Franchise Group, Inc.)
Asset Sales. The Borrower Holdings will not, and nor will not it (i) permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest owned by it it, or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than (A) issuing directors’ qualifying shares, shares or nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than Law, (B) issuing Equity Interests to the Borrower or a any Restricted Subsidiary in compliance with Section 7.04(c6.04(c), (C) any non-wholly-owned Restricted Subsidiary issuing Equity Interests of such Subsidiary to each owner of Equity Interests of such Subsidiary ratably based on their relative ownership interests and (D) any Equity Interests that are pledged (and remain pledged) by a Loan Party to secure the Secured Obligations hereunder), in a single transaction or a series of related transactions (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of Holdings and the Borrower and its Restricted Subsidiaries (including (i) allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated)invalidated or (ii) disposing of, discontinuing the use or maintenance of, abandoning, failing to pursue or otherwise allowing to lapse, expire, terminate or put into the public domain any of its Intellectual Property if the Borrower determines in its reasonable business judgment that such discontinuance is desirable in the conduct of its business and does not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of businessincluding on an intercompany basis);
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property property, or other assets of comparable or greater value or usefulness to the business or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower Holdings or a any Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan PartyParty (other than Holdingsa Holding Company), (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.08 and Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e);
(f) Dispositions of cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions of (A) accounts receivable, notes receivable or other current assets in the ordinary course of business or consistent with industry practice or the conversion of accounts receivable to notes receivable or other dispositions of accounts receivable in connection with the collection or compromise thereof and (B) Permitted Receivables Financing Assets pursuant to any Permitted Receivables Financing;
(h) leases, subleases, non-exclusive licenses or non-exclusive sublicenses, in each case in the ordinary course of business and that do not materially interfere with the business of Holdings and the Restricted Subsidiaries, taken as a whole;
(i) transfers of property subject to Recovery Events upon receipt of the Net Proceeds of such Recovery Event;
(j) Dispositions of other assets or property (including the sale or issuance of Equity Interests in a Restricted Subsidiary) not otherwise permitted under this Section 6.05; provided that (i) such Disposition is made for Fair Market Value, (ii) with respect to any Disposition pursuant to this clause (j) for a sale price in excess of the greater of (x) $35,000,000 and (y) 5.0% of the Consolidated EBITDA for the then most recently ended Test Period for any transaction or series of related transactions, Holdings or any Restricted Subsidiary shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (ii), (A) any liabilities (as shown on the most recent balance sheet of Holdings provided hereunder or in the footnotes thereto) of Holdings or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, (1) that are assumed by the transferee with respect to the applicable Disposition and (2) in respect of which Holdings and each Restricted Subsidiary is no longer obligated with respect to such liabilities or are indemnified against further liabilities, shall be deemed to be cash, (B) any securities received by Holdings or such Restricted Subsidiary from such transferee that are converted by Holdings or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash, (C) Indebtedness of a Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Disposition, to the extent that Holdings and each other Restricted Subsidiary is released from any guarantee of such Indebtedness in connection with such Disposition, shall be deemed to be cash, (D) consideration consisting of Indebtedness of the Borrower or any Guarantor that is secured by a Lien that is secured on a pari passu basis with the Lien securing the Secured Obligations on the asset which is subject of the Disposition, in each case received from Persons who are not Holdings or Restricted Subsidiary that is cancelled, shall be deemed to be cash, and (E) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (j) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of the greater of (x) $50,000,000 and (y) 5.0% of Consolidated EBITDA for the most recently ended Test Period (net of any Designated Non-Cash Consideration converted into cash or Cash Equivalents), with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash and (iii) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b);
(k) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in, joint venture agreements and similar binding arrangements;
(l) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not core or principal to the business of Holdings and the Restricted Subsidiaries or (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(m) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(n) [Reserved]Dispositions by any Holding Company to any other Holding Company, so long as the Collateral and Guarantee Requirement remains satisfied in connection therewith;
(o) Dispositions in connection with any Tax Restructuring provided that after giving effect to any such Disposition, the Guarantees of the Loans and the security interests of the Lenders in the Collateral, taken as a whole, would not be adversely impaired;
(p) [Reserved];
(q) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(r) a Permitted Reorganization;
(s) each Loan Party and each of its Restricted Subsidiaries may surrender or waive contractual rights and settle or waive contractual or litigation claims in the ordinary course of business; and
(t) the unwinding of any Swap Agreement pursuant to its terms. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.05 to any Person other than a Loan Party or Restricted Subsidiary, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Asset Sales. The Borrower Holdings will not, and nor will not it (i) permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest owned by it it, or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than (A) issuing directors’ qualifying shares, shares or nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than Law, (B) issuing Equity Interests to the Borrower or a any Restricted Subsidiary in compliance with Section 7.04(c6.04(c), (C) any non-wholly-owned Restricted Subsidiary issuing Equity Interests of such Subsidiary to each owner of Equity Interests of such Subsidiary ratably based on their relative ownership interests and (D) any Equity Interests that are pledged (and remain pledged) by a Loan Party to secure the Secured Obligations hereunder), in a single transaction or a series of related transactions (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of Holdings and the Borrower and its Restricted Subsidiaries (including (i) allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated)invalidated or (ii) disposing of, discontinuing the use or maintenance of, abandoning, failing to pursue or otherwise allowing to lapse, expire, terminate or put into the public domain any of its Intellectual Property if the Borrower determines in its reasonable business judgment that such discontinuance is desirable in the conduct of its business and does not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of businessincluding on an intercompany basis);
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property property, or other assets of comparable or greater value or usefulness to the business or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower Holdings or a any Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan PartyParty (other than Holdings), (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.08 and Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e);
(f) Dispositions of cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions of (A) accounts receivable, notes receivable or other current assets in the ordinary course of business or consistent with industry practice or the conversion of accounts receivable to notes receivable or other dispositions of accounts receivable in connection with the collection or compromise thereof and (B) Permitted Receivables Financing Assets pursuant to any Permitted Receivables Financing;
(h) leases, subleases, non-exclusive licenses or non-exclusive sublicenses, in each case in the ordinary course of business and that do not materially interfere with the business of Holdings and the Restricted Subsidiaries, taken as a whole;
(i) transfers of property subject to Recovery Events upon receipt of the Net Proceeds of such Recovery Event;
(j) Dispositions of other assets or property (including the sale or issuance of Equity Interests in a Restricted Subsidiary) not otherwise permitted under this Section 6.05; provided that (i) such Disposition is made for Fair Market Value, (ii) with respect to any Disposition pursuant to this clause (j) for a sale price in excess of the greater of (x) $35,000,000 and (y) 5.0% of the Consolidated EBITDA for the then most recently ended Test Period for any transaction or series of related transactions, Holdings or any Restricted Subsidiary shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (ii), (A) any liabilities (as shown on the most recent balance sheet of Holdings provided hereunder or in the footnotes thereto) of Holdings or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, (1) that are assumed by the transferee with respect to the applicable Disposition and (2) in respect of which Holdings and each Restricted Subsidiary is no longer obligated with respect to such liabilities or are indemnified against further liabilities, shall be deemed to be cash, (B) any securities received by Holdings or such Restricted Subsidiary from such transferee that are converted by Holdings or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash, (C) Indebtedness of a Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Disposition, to the extent that Holdings and each other Restricted Subsidiary is released from any guarantee of such Indebtedness in connection with such Disposition, shall be deemed to be cash, (D) consideration consisting of Indebtedness of the Borrower or any Guarantor that is secured by a Lien that is secured on a pari passu basis with the Lien securing the Secured Obligations on the asset which is subject of the Disposition, in each case received from Persons who are not Holdings or Restricted Subsidiary that is cancelled, shall be deemed to be cash, and (E) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (j) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of the greater of (x) $50,000,000 and (y) 5.0% of Consolidated EBITDA for the most recently ended Test Period (net of any Designated Non-Cash Consideration converted into cash or Cash Equivalents), with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash and (iii) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b);
(k) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in, joint venture agreements and similar binding arrangements;
(l) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not core or principal to the business of Holdings and the Restricted Subsidiaries or (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(m) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(n) [Reserved];
(o) Dispositions in connection with any Tax Restructuring provided that after giving effect to any such Disposition, the Guarantees of the Loans and the security interests of the Lenders in the Collateral, taken as a whole, would not be adversely impaired;
(p) [Reserved];
(q) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(r) a Permitted Reorganization;
(s) each Loan Party and each of its Restricted Subsidiaries may surrender or waive contractual rights and settle or waive contractual or litigation claims in the ordinary course of business; and
(t) the unwinding of any Swap Agreement pursuant to its terms. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.05 to any Person other than a Loan Party or Restricted Subsidiary, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Asset Sales. The Borrower will not, and nor will not it permit any of its Restricted Subsidiary to, Subsidiaries to (i) voluntarily sell, transfer, lease lease, license or otherwise dispose (including any disposition of property or assets to a Divided Delaware LLC pursuant to a Delaware LLC Division) of any asset, including any Equity Interest owned by it it, or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than (A) issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than Law, (B) issuing Equity Interests to the Borrower or a any Restricted Subsidiary in compliance with Section 7.04(c6.04(c) and (C) any non-wholly- owned Restricted Subsidiary issuing Equity Interests of such Subsidiary to each owner of Equity Interests of such Subsidiary ratably based on their relative ownership interests), in each case, having a Fair Market Value, in a single transaction or series of related transactions, as of the date of such transaction(s) exceeding (x) $1,000,000, individually or (y) $2,500,000, in the aggregate in any fiscal year (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
: (a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, if made in good faith determination of the board of directors of the Borrower and/or in the ordinary course of business or consistent with past practice and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its the Restricted Subsidiaries (including (i) allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated);
invalidated or (ii) disposing of, discontinuing the use or maintenance of, abandoning, failing to pursue or otherwise allowing to lapse, expire, terminate or put into the public domain any of its Intellectual Property) if the Borrower determines in its reasonable business judgment that such discontinuance is 121 desirable in the conduct of its business and does not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole; (b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
including on an intercompany basis); (c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property property, or other assets of comparable or greater value or usefulness to the business or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
; (d) If, and for so long as, a Suspension Period is not then in effect, Dispositions of property to the Borrower or any Restricted Subsidiary (for the avoidance of doubt, no transaction shall be made in reliance on this clause (d) during a Restricted SubsidiarySuspension Period); provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan PartyParty (other than Holdings), (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.046.04; (e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04 (other than clause (x) thereof), Restricted Payments permitted by Section 7.07 6.08 and Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e); (f) Dispositions of cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made; (g) sales, discounts of or forgiveness of customer delinquent notes or delinquent accounts receivable, notes receivable or other current assets in the ordinary course of business or consistent with industry practice or the conversion of delinquent accounts receivable to notes receivable or other dispositions of delinquent accounts receivable in connection with settlement, collection or compromise thereof; (h) leases, subleases, licenses or sublicenses, in each case in the ordinary course of business or consistent with past practice or that do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole; (i) transfers or other Dispositions of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event; (j) If, and for so long as, a Suspension Period is not then in effect, Dispositions of other assets or property (including the sale or issuance of Equity Interests in a Restricted Subsidiary) not otherwise permitted under this Section 6.05 having a Fair Market Value, in a single transaction or a series of related transactions, as of the date of such transaction(s), exceeding $20,000,000 in the aggregate in any fiscal year; provided that (i) such Disposition is made for Fair Market Value, (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of the greater of (x) $1,000,000 and (y) 2.5% of Consolidated Cash EBITDA for the Test Period most recently ended on or prior to the date of such Disposition based upon the financial statements most recently delivered (or required to have been delivered) on or prior to such date pursuant to Section 5.01(a) or (b), for any transaction or series of related transactions the Borrower or any Restricted Subsidiary shall receive not less than 75.0% of such consideration in the 122 form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (ii), (A) any liabilities (as shown on the most recent balance sheet of the Borrower provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that (1) are assumed by the transferee with respect to the applicable Disposition or (2) are otherwise cancelled or terminated in connection with the transaction with such transferee, and for which the Borrower and its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (j) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of the greater of (x) $1,000,000 and (y) 2.5% of Consolidated Total Assets for the Test Period most recently ended on or prior to the date of such Disposition (measured as of the date such Disposition is made based upon the financial statements most recently delivered (or required to have been delivered) on or prior to such date pursuant to Section 5.01(a) or (b)) (net of any Designated Non-Cash Consideration converted into cash or Cash Equivalents), with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash, (iii) no Event of Default shall be continuing on the date of such Disposition (or if earlier, the date that the Borrower or its Restricted Subsidiary enters into a binding agreement to consummate such Disposition) or result from such Disposition, and (iv) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(c) (for the avoidance of doubt, no transaction shall be made in reliance on this clause (j) during a Suspension Period); (k) Dispositions of Investments in Joint Ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the Joint Venture parties set forth in, Joint Venture agreements and similar binding arrangements; (l) if, and for so long as, a Suspension Period is not then in effect, Dispositions of any assets (including Equity Interests) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not core or principal to the business of the Borrower and the Restricted Subsidiaries and do not exceed 30% of the assets acquired pursuant to such Permitted Acquisition or other Investment (for the avoidance of doubt, no transaction shall be made in reliance on this clause (l) during a Suspension Period); (m) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement; (n) if, and for so long as, a Suspension Period is not then in effect, Dispositions of assets that do not constitute Collateral (including Dispositions or issuance of Equity Interests in, Indebtedness of, other securities issued by, Unrestricted Subsidiaries) for Fair Market Value not in excess of $3,000,000(for the avoidance of doubt, no transaction shall be made in reliance on this clause (n) during a Suspension Period); (o) [Reserved];
Appears in 1 contract
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any assetasset (in one transaction or in a series of related transactions and whether effected pursuant to a Division or otherwise), including any Equity Interest owned by it or (ii) it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals or other Persons to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Holdings, the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its the Restricted Subsidiaries (including allowing any Intellectual Property (and any related registration or application for registration of any Intellectual Property application) that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, abandoned or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or property, (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement propertyproperty or (iii) such Disposition qualifies for non-recognition treatment under Section 1031 of the Code, or any comparable or successor provision for like-kind property (and any boot thereon) and for use in a Similar Business;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments and prepayments, purchases and redemptions of Indebtedness permitted by Section 7.07 and 6.08, Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e);
(f) any issuance, sale or pledge of Equity Interests in, or Indebtedness, or other securities of, an Unrestricted Subsidiary;
(g) Dispositions of Permitted Investments;
(h) Dispositions of (A) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) and (B) receivables and related assets pursuant to any Permitted Receivables Financing;
(i) leases, subleases, service agreements, covenants not to sue, licenses or sublicenses (including agreements involving the provision of software under an open source license, in copy or as a service, and related data and services), in each case that do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
Appears in 1 contract
Sources: Credit Agreement (EverCommerce Inc.)
Asset Sales. The (a) Neither Holdings nor the Borrower will, nor will not, and will not they permit any Restricted Subsidiary or Intermediate Parent, to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Holdings, the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property that is no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of Holdings, any Intermediate Parent, the Borrower and its the Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04 (other than Section 6.04(u)), Restricted Payments permitted by Section 7.07 6.08(a), Restricted Debt Payments permitted by Section 6.08(b) and Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05;
(f) [reserved];
(g) Dispositions of Permitted Investments in the ordinary course of business;
(h) Dispositions of (A) accounts receivable in the ordinary course of business in connection with the collection or compromise thereof (excluding sales to factors or other third parties) and (B) accounts receivables and related assets pursuant to any Permitted Receivables Financing;
(i) leases, subleases, non-exclusive licenses or sublicenses, in each case, in the ordinary course of business and that, individually or in the aggregate, do not materially interfere with the business of Holdings, the Intermediate Parents, the Borrower and the Restricted Subsidiaries;
(j) Dispositions of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(k) Dispositions of property to Persons other than Holdings, the Borrower or any of the Restricted Subsidiaries (including the sale or issuance of Equity Interests in a Restricted Subsidiary) not otherwise permitted under this Section 6.05 in an aggregate principal amount not to exceed $10,000,000 in any fiscal year; provided that (i) such Disposition is made for Fair Market Value and (ii) the Borrower or a Restricted Subsidiary shall receive not less than 90% of such consideration in the form of cash or Permitted Investments;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets (including Equity Interests) (i) acquired in connection with any Permitted Acquisition or other similar Investment permitted hereunder, which assets are not used or useful to the core or principal business of the Borrower and the Restricted Subsidiaries and (ii) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition or other similar Investment permitted hereunder;
(n) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(o) [reserved]; and
(p) [reserved]. Notwithstanding the foregoing or anything else in this Agreement or the other Loan Documents to the contrary, Holdings, the Borrower, and each Subsidiary and any Intermediate Parent will comply with the Material Intellectual Property Provision. Notwithstanding the foregoing or anything else in this Agreement or the other Loan Documents to the contrary, for purposes of this Section 6.05, the Foreign Guarantors will be deemed to be Subsidiaries of the Borrower that are not Loan Parties.
Appears in 1 contract
Sources: First Lien Priority Credit Agreement (Cyxtera Technologies, Inc.)
Asset Sales. (i) The Borrower Company will not, and nor will not it permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest and any Intellectual Property owned by it or and (ii) Invacare Corporation will not permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary following the Issue Date (other than (A) issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than Law, (B) issuing Equity Interests to the Borrower or a any Restricted Subsidiary in compliance with Section 7.04(c4.13(c), (C) any non-wholly-owned Restricted Subsidiary issuing Equity Interests of such Subsidiary to each owner of Equity Interests of such Subsidiary ratably based on their relative ownership interests, (D) issuing securities pursuant to a management equity plan, stock option plan, phantom equity plan or any other management, employee benefit or other compensatory plan or agreement (and any successor plans or arrangements thereto), (E) Invacare Corporation and New International Holdings issuing Equity Interests (other than Disqualified Equity Interests) and (F) the issuance of Convertible Preferred Stock, in each case, having a fair market value (x) in excess of $500,000, in a single transaction or a series of related transactions or (y) in excess of $2,500,000 in any fiscal year (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically #96856647v2 practicable to maintain, in the conduct of the core or principal business of Invacare Corporation and the Borrower and its Restricted Subsidiaries (including (i) allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidatedinvalidated or (ii) disposing of, discontinuing the use or maintenance of, abandoning, failing to pursue or otherwise allowing to lapse, expire, terminate or put into the public domain any of its Intellectual Property if the Company determines in its reasonable business judgment that such discontinuance is desirable in the conduct of its business);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of businessincluding on an intercompany basis);
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property property, or other assets of comparable or greater value or usefulness to the business or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower Invacare Corporation or a any Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Note Party, then either (i) the transferee must be a Loan PartyNote Party (other than the Company), (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Note Guarantor permitted by Section 7.04 4.13 and Section 4.28 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan PartyNote Guarantor, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party Note Guarantor permitted by Section 4.13 and Section 4.28; provided that the aggregate amount of such Dispositions made by Note Parties after the Issue Date in accordance Restricted Subsidiaries that are not Note Parties in reliance on this clause (d), together with the aggregate amount of (x) all other Investments made in and Dispositions made to Restricted Subsidiaries that are not Note Guarantors by Note Parties after the Issue Date and (y) all Investments and Dispositions made in reliance on Section 7.04; 4.28(ii), shall not exceed $7,500,000;
(e) Dispositions permitted by Section 7.034.12, Investments permitted by Section 7.044.13, Restricted Payments permitted by Section 7.07 4.17 and Liens permitted by Section 7.024.11, in each case, other than by reference to this Section 4.14(e);
(f) Dispositions of cash and/or Permitted Investments and/or other assets that were Permitted Investments when the relevant original Investment was made;
(g) the sale or discount, in each case without recourse of past due accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not for financing purposes;
(h) leases, subleases, licenses or sublicenses, in each case in the ordinary course of business and that do not materially interfere with the business of Invacare Corporation and the Restricted Subsidiaries, taken as a whole;
(i) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(j) Dispositions of property to Persons other than the Company or any Restricted Subsidiary (including the sale or issuance of Equity Interests (other than Disqualified Equity Interests) in a Restricted Subsidiary) not otherwise permitted under this Section 4.14 in an aggregate amount during the term of this Indenture not to exceed $40,000,000; provided, that (i) such Disposition is made for Fair Market Value and (ii) Invacare Corporation or any Restricted Subsidiary shall receive not less than 75.0% of such consideration in the form of cash or Permitted Investments (provided, that for purposes of this clause (ii), the following shall be deemed to be cash or Permitted Investments: (A) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto for which internal financial statements are available immediately preceding such date or, if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Company’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet in the good faith determination of the Company) of the Company or any of its Restricted Subsidiaries (other than liabilities that are by their terms subordinated to the Notes Obligations) that are extinguished in connection with the transactions relating to such Disposition, or that are assumed by the transferee, in each case, pursuant to an agreement that releases or indemnifies the Company and/or its applicable Restricted Subsidiaries, as the case may be, from further #96856647v2 liability and (B) any notes or other obligations or other securities or assets received by the Company or any of its Restricted Subsidiaries from such transferee that are converted by the Company or such Restricted Subsidiary into cash or cash equivalents, or by their terms are required to be satisfied for cash or Permitted Investments (to the extent of the cash or Permitted Investments received), in each case, within 60 days of the receipt thereof); provided, further, that the Net Proceeds thereof shall be applied in accordance with Section 2.11(d) of the Credit Agreement;
(k) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in, joint venture agreements and similar binding arrangements;
(l) any transfer of property in connection with a Permitted Sale/Leaseback Transaction;
(m) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(n) [reserved];
(o) [reserved];
(p) [reserved];
(q) any merger, amalgamation, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or, subject to the consent of the Required Holders (such consent not to be unreasonably withheld, conditioned or delayed; provided, that it is acknowledged and agreed that it shall not be unreasonable to withhold consent to any such transaction that will have a material adverse impact on the Note Guarantees or the Collateral), any other jurisdiction; and
(r) Dispositions of customer accounts receivable in connection with a Vendor Financing Program. Subject to Section 4.33, to the extent that any Collateral is Disposed of as expressly permitted by this Section 4.14 to any Person other than a Note Party, subject to the proviso set forth in clause (a) of the definition of Excluded Subsidiary with respect to any Disposition of less than 100% of the Equity Interests of a wholly-owned subsidiary, such Collateral shall be sold free and clear of the Liens created by the Notes Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Trustee and the Notes Collateral Agent, acting at the direction of the Required Holders, shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing, and shall be entitled to rely, without independent investigation on an Officer’s Certificate of the Company in connection with the foregoing (which shall be delivered to the Trustee and the Notes Collateral Agent upon request therefor).
Appears in 1 contract
Sources: Indenture (INVACARE HOLDINGS Corp)
Asset Sales. The Borrower will not, and nor will not it permit any of its Restricted Subsidiary to, Subsidiaries to (i) voluntarily sell, transfer, lease lease, license or otherwise dispose (including any disposition of property or assets to a Divided Delaware LLC pursuant to a Delaware LLC Division) of any asset, including any Equity Interest owned by it it, or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than (A) issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than Law, (B) issuing Equity Interests to the Borrower or a any Restricted Subsidiary in compliance with Section 7.04(c6.04(c) and (C) any non-wholly- 198 #97964454v4 #97964454v11 owned owned Restricted Subsidiary issuing Equity Interests of such Subsidiary to each owner of Equity Interests of such Subsidiary ratably based on their relative ownership interests), in each case, having a Fair Market Value, in a single transaction or a series of related transactions, as of the date of such transaction(s) exceeding (x) $1,000,000, individually or (y) $2,500,000, in the aggregate in any fiscal year (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
: (a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, if made in good faith determination of the board of directors of the Borrower and/or in the ordinary course of business or consistent with past practice and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its the Restricted Subsidiaries (including (i) allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated);
invalidated or (ii) disposing of, discontinuing the use or maintenance of, abandoning, failing to pursue or otherwise allowing to lapse, expire, terminate or put into the public domain any of its Intellectual Property) if the Borrower determines in its reasonable business judgment that such discontinuance is desirable in the conduct of its business and does not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole; (b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
including on an intercompany basis); (c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property property, or other assets of comparable or greater value or usefulness to the business or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
; (d) After theIf, and for so long as, a Suspension Period has endedis not then in effect, Dispositions of property to the Borrower or a any Restricted SubsidiarySubsidiary (for the avoidance of doubt, no transaction shall be made in reliance on this clause (d) during thea Suspension Period); provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan PartyParty (other than Holdings), (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.046.04; (e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04 (other than clause (x) thereof), Restricted Payments permitted by Section 7.07 6.08 and Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e); (f) Dispositions of cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made; (g)
(i) sales, discounts of or forgiveness of customer delinquent notes or delinquent accounts receivable, notes receivable or other current assets in the ordinary course of business or consistent with industry practice or the conversion of delinquent accounts receivable to notes receivable or other dispositions of delinquent accounts receivable in connection with settlement, collection or compromise thereof and (ii) after the Suspension Period has ended, so long as no Event of Default has occurred and is continuing, Dispositions of Permitted Receivables Financing Assets pursuant to any Permitted Receivables Financing (for the avoidance of doubt, no transaction shall be made in 199 #97964454v4 #97964454v11 reliance on this clause (g)(ii) during the Suspension Period); provided that (x) [reserved] and (y) at the time of any such Disposition of Permitted Receivables Financing Assets, the Borrower and the Restricted Subsidiaries shall be in compliance, after giving pro forma effect to such Disposition or the use of proceeds thereof, with a Contract Asset Balance Coverage Ratio (determined excluding from the Contract Asset Balance Coverage Ratio, the Permitted Receivables Financing Assets so Disposed) that is no less than 2.00:1.00 as of the last day of the Test Period most recently ended on or prior to such date of such Disposition (measured as of the date such Disposition is made based upon the financial statements most recently delivered (or required to have been delivered) on or prior to such date pursuant to Section 5.01(a) or (b));; (h) leases, subleases, licenses or sublicenses, in each case in the ordinary course of business or consistent with past practice or that do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole; (i) transfers or other Dispositions of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event; (j) If, and for so long as, a Suspension Period is not then in effect, Dispositions of other assets or property (including the sale or issuance of Equity Interests in a Restricted Subsidiary) not otherwise permitted under this Section 6.05 having a Fair Market Value, in a single transaction or a series of related transactions, as of the date of such transaction(s), exceeding $20,000,000 in the aggregate in any fiscal year; provided that (i) such Disposition is made for Fair Market Value, (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of the greater of (x) $1,000,000 and (y) 2.5% of Consolidated Cash EBITDA for the Test Period most recently ended on or prior to the date of such Disposition based upon the financial statements most recently delivered (or required to have been delivered) on or prior to such date pursuant to Section 5.01(a) or (b), for any transaction or series of related transactions the Borrower or any Restricted Subsidiary shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (ii), (A) any liabilities (as shown on the most recent balance sheet of the Borrower provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that (1) are assumed by the transferee with respect to the applicable Disposition or (2) are otherwise cancelled or terminated in connection with the transaction with such transferee, and for which the Borrower and its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (j) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of the greater of (x) $1,000,000 and (y) 2.5% of Consolidated Total Assets for the Test Period most recently ended on or prior to the date of such Disposition (measured as of the date such Disposition is made based upon the financial statements most recently delivered (or required to have been delivered) on or prior to such date pursuant to Section 5.01(a) or (b)) (net of any Designated Non-Cash Consideration converted into cash or Cash Equivalents), with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash, and (iii) no Event of Default shall be continuing on the date of such Disposition (or if earlier, the date that the Borrower or its Restricted Subsidiary enters into a binding agreement to consummate such Disposition) or result from such 200 #97964454v4 #97964454v11 Disposition, and (iv) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(c) (for the avoidance of doubt, no transaction shall be made in reliance on this clause (j) during a Suspension Period); (k) Dispositions of Investments in Joint Ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the Joint Venture parties set forth in, Joint Venture agreements and similar binding arrangements; (l) after theif, and for so long as, a Suspension Period has endedis not then in effect, Dispositions of any assets (including Equity Interests) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not core or principal to the business of the Borrower and the Restricted Subsidiaries and do not exceed 30% of the assets acquired pursuant to such Permitted Acquisition or other Investment (for the avoidance of doubt, no transaction shall be made in reliance on this clause (l) during thea Suspension Period); (m) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement; (n) after theif, and for so long as, a Suspension Period has endedis not then in effect, Dispositions of assets that do not constitute Collateral (including Dispositions or issuance of Equity Interests in, Indebtedness of, other securities issued by, Unrestricted Subsidiaries) for Fair Market Value not in excess of the greater of (x) $3,000,000 and (y) 10.0% of Consolidated Total Assets for the Test Period most recently ended on or prior to the date of such Disposition (measured as of the date such Disposition is made based upon the financial statements most recently delivered (or required to have been delivered) on or prior to such date pursuant to Section 5.01(a) or (b)) (for the avoidance of doubt, no transaction shall be made in reliance on this clause (n) during thea Suspension Period); (o) Dispositions in connection with the Transactions[Reserved]; (p) After theIf, and for so long as, a Suspension Period has endedis not then in effect, any Disposition of real property as a Sale Leaseback; provided that (i) such Sale Leaseback is made for Fair Market Value, (ii) not less than 75.0% of the consideration for such Sale Leaseback shall be received by the Borrower or its Restricted Subsidiaries shall be in the form of cash or Cash Equivalents, and (iii) any Financing Lease Obligations or Liens arising in connection therewith are permitted by Section 6.01 and 6.02, as the case may be (for the avoidance of doubt, no transaction shall be made in reliance on this clause (p) during thea Suspension Period); (q) any merger, consolidation, amalgamation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;[Reserved]; (r) [rReserved];
Appears in 1 contract
Sources: Credit Agreement (GoHealth, Inc.)
Asset Sales. The Borrower will not, and nor will not it permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted another Subsidiary in compliance with Section 7.04(c)6.04) (each, a “Disposition” and the term or “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of (i) inventory in the ordinary course of business, (ii) used, obsolete, damaged, used, surplus or worn out propertyor surplus equipment or property in the ordinary course of business; and (iii) property no longer used or useful, whether now owned or hereafter acquiredeconomically practicable or commercially desirable to maintain, in the conduct of the business of the Borrower and Dispositions any Subsidiary (including by ceasing to enforce or allowing the lapse, abandonment or invalidation of non-core assets or propertydiscontinuing the use or maintenance of or putting into the public domain any intellectual property that is, including assets or propertyin the reasonable judgment of the Borrower, no longer used or useful, or economically practicable or commercially desirable to maintain, or in respect of which the Borrower determines in its reasonable business judgment that such action or inaction is desirable, in each case pursuant to this clause (iii), which has a Fair Market Value, individually or in the conduct aggregate, in an amount not to exceed $5,000,000 for the period of the core or principal business four consecutive fiscal quarters of the Borrower and its Restricted Subsidiaries most recently ended for which financial statements have been delivered (including allowing any registration or application for registration calculated at the time of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidatedsuch Disposition));
(b) Dispositions of inventory and other assets (including Settlement Assets) in to the ordinary course of business Borrower or consistent with past practice any Subsidiary, provided that any such sales, transfers or held for sale dispositions from a Loan Party to a Subsidiary that is not a Loan Party or no longer used in from the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of businessBorrower or a Subsidiary shall constitute Investments subject to Section 6.04;
(c) Dispositions of property to accounts receivable in connection with the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property compromise, settlement or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement propertycollection thereof consistent with past practice;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an InvestmentDispositions, such Investment must be a transactions permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Partyby Sections 6.02, such Disposition is for fair market value (as determined in good faith by the Borrower) 6.03, 6.04, 6.06 and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; 6.08;
(e) Dispositions permitted by Section 7.03of Investments in joint ventures to the extent required by, Investments permitted by Section 7.04or made pursuant to customary buy/sell arrangements between, Restricted Payments permitted by Section 7.07 the joint venture parties set forth in joint venture arrangements and Liens permitted by Section 7.02similar binding arrangements;
Appears in 1 contract
Sources: Credit Agreement (Tempus AI, Inc.)
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest Interests owned by it or (ii) it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest Interests in such Restricted Subsidiary (other than (i) any Restricted Subsidiary issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than (ii) any Restricted Subsidiary issuing Equity Interests to the Borrower or a another Restricted Subsidiary in compliance with Section 7.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaningor ratably to its holders of its Equity Interests), except:
(a) Dispositions sales, transfers, leases and other dispositions of (i) inventory, goods or services or immaterial assets in the ordinary course of business, (ii) obsolete, damagedworn-out, useduneconomic, damaged or surplus property or worn out property, whether now owned or hereafter acquired, and Dispositions of non-core assets or property, including assets or property, no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property property that is no longer economically practical or commercially desirable to maintain or used or usefuluseful in its business, whether now or economically practicable to maintainhereafter owned or leased or acquired in connection with an Acquisition, to lapse(iii) cash, go abandoned, or be invalidated);
(b) Dispositions of inventory Cash Equivalents and other assets investment securities in the ordinary course of business, (including Settlement Assetsiv) accounts in the ordinary course of business for purposes of collection, and (v) assets to the extent that the aggregate value of such assets sold in any single transaction or consistent with past practice related series of transactions is equal to $6,500,000 or held for sale less and the aggregate value of such assets sold during any fiscal year of Holdcothe Borrower is equal to $13,000,000 or no longer used in less;
(b) sales, transfers, leases and other dispositions to the ordinary course Borrower or any Subsidiary (including by contribution, disposition, dividend or otherwise); provided that if the transferor of business and immaterial assets such property is a Loan Party, then (considered in x) the aggregatetransferee thereof must be a Loan Party or (y) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition (1) is in the ordinary course of business;
, (c2) Dispositions of property to the extent for fair value and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 6.04 (iother than Section 6.04(l) such property is exchanged for credit against the purchase price of similar replacement property and (aa)), or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii3) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 (other than Section 6.04(l) and (aa));
(c) sales, transfers and other dispositions of accounts receivable (including write-offs, discounts and compromises) in connection with the compromise, settlement or collection thereof;
(iiid) sales, transfers, leases and other dispositions of property to the extent constituting that such property constitutes an Investment permitted by Section 6.04 (other than Section 6.04(l) and (aa)) hereunder or another asset received as consideration for the disposition of any asset permitted by this Section (in each case, other than Equity Interests in a Disposition Restricted Subsidiary, unless all Equity Interests in such Restricted Subsidiary are sold);
(e) leases or licenses or subleases or sublicenses entered into in the ordinary course of business, to the extent that they do not materially interfere with the business of Holdco and the Restricted Subsidiaries taken as a whole;
(f) conveyances, sales, transfers, licenses, including, for the avoidance of doubt, any licensing of curriculums, or sublicenses or other dispositions of Software or other rights in Intellectual Property in the ordinary course of business or pursuant to a research or development agreement in which the counterparty to such agreement receives a license to Software or other Intellectual Property that result from such agreement;
(g) dispositions resulting from any casualty or insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary;
(h) the abandonment, lapse, expiration or other disposition of Intellectual Property, whether now or hereafter owned or leased or acquired in connection with an Acquisition or other permitted Investment that is, in the reasonable good faith judgment of the Borrower, no longer economically practicable or commercially desirable to maintain or used or useful in the business of the Borrower and the Restricted Subsidiaries;
(i) [Reserved];
(j) dispositions from and after the Closing Date of non-core or obsolete assets acquired in connection with any Acquisition or other permitted Investments;
(k) sales, transfers and other dispositions by the Borrower or any Restricted Subsidiary that is not a Loan Party, of assets since the Closing Date so long as (A) such Disposition disposition is for fair market value (as determined in good faith by the Borrower or such Restricted Subsidiary), (B) if at the time of execution of a binding agreement in respect of such sale, transfer or other disposition, no Event of Default has occurred and is continuing or would result therefrom, (C) at least 75% of the consideration (other than (A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Borrower or any of its Restricted Subsidiaries and the valid release of the Borrower or such Restricted Subsidiary, by all applicable creditors in writing, from all liability on such Indebtedness or other liability in connection with such Disposition, (B) securities, notes or other obligations received by the Borrower or any of its Restricted Subsidiaries from the transferee that are converted by the Borrower or any of its Restricted Subsidiaries into cash or Cash Equivalents within 180 days following the closing of such Disposition, (C) [Reserved], (D) consideration consisting of Indebtedness of the Borrower (other than Subordinated Indebtedness) received after the Closing Date from Persons who are not the Borrower or any Restricted Subsidiary and (E) in connection with an asset swap, all of which shall be deemed “cash”) received is cash or Cash Equivalents or Designated Non-Cash Consideration to the extent that all Designated Non-Cash Consideration at such time does not exceed the greater of (x) $47,000,000 and (y) 32% of Consolidated EBITDA for the most recently ended four fiscal quarter period for which financial statements are available (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and all of the consideration received is at least equal to the fair market value of the assets sold, transferred or otherwise disposed of and (D) the Net Proceeds thereof shall be subject to Section 2.11(c);
(l) sales, transfers and other dispositions permitted by Section 6.03 (other than Section 6.03(a)(vii) or (b)(viii));
(m) the sale or exchange of specific items of property, so long as the purpose of each such sale or exchange is to acquire (and results within 365 days of such sale or exchange in the acquisition of) replacement items of property that are the functional equivalent of the item of property so sold or exchanged;
(n) the incurrence of Liens permitted hereunder;
(o) [reserved];
(p) sales, transfers and other dispositions made in order to effect the Transactions;
(q) sales or dispositions of Equity Interests of any Subsidiary (other than the Borrower) in order to qualify members of the Governing Body of such Subsidiary if required by applicable law;
(r) samples, including time-limited evaluation software, provided to customers or prospective customers;
(s) de minimis amounts of equipment provided to employees;
(t) sales, transfers and other dispositions of any promissory note Equity Interests in Unrestricted Subsidiaries or their assets;
(u) Restricted Payments made pursuant to Section 6.08;
(v) Permitted Sale Leasebacks in an aggregate principal amount not to exceed the greater of $30,000,000 and 20% of Consolidated EBITDA;
(w) the unwinding of any Cash Management Agreement or Swap Agreement pursuant to its terms;
(x) sales, transfers or other non-cash consideration received dispositions of Investments in respect thereof is a permitted investment in a Restricted Joint Ventures or any Subsidiary that is not a Loan Party wholly owned Restricted Subsidiary to the extent required by, or made pursuant to customary buy/sell arrangements between, the parties set forth in accordance Joint Venture arrangements and similar binding agreements;
(y) the Borrower and any Restricted Subsidiary may (i) terminate or otherwise collapse its cost sharing agreements with Section 7.04the Borrower or any Subsidiary and settle any crossing payments in connection therewith, (ii) convert any intercompany Indebtedness to Equity Interests, (iii) transfer any intercompany Indebtedness to the Borrower or any Restricted Subsidiary, (iv) settle, discount, write off, forgive or cancel any intercompany Indebtedness or other obligation owing by the Borrower or any Restricted Subsidiary, (v) settle, discount, write off, forgive or cancel any Indebtedness owing by any present or former consultants, directors, officers or employees of any Parent Entity, Holdco, the Borrower or any Subsidiary or any of their successors or assigns or (vi) surrender or waive contractual rights and settle or waive contractual or litigation claims;
(z) any Disposition of Securitization Assets or Receivables Assets, or participations therein, in connection with any Qualified Securitization Financing or Receivables Facility, or the Disposition of an account receivable in connection with the collection or compromise thereof in the ordinary course of business or consistent with past practice;
(aa) [Reserved];
(bb) other Dispositions (including those of the type otherwise described herein) made after the Closing Date in an aggregate amount not to exceed the greater of (x) $6,500,000 and (y) the Consolidated EBITDA generated by or attributable to all such property Disposed of shall not exceed 4% of Consolidated EBITDA for the most recently ended four fiscal quarter period for which financial statements are available; and
(ecc) Dispositions permitted any swap of assets in exchange for services or other assets in the ordinary course of business of comparable or greater fair market value of usefulness to the business of Holdco and its Restricted Subsidiaries as a whole, as determined in good faith by Section 7.03, Investments permitted by Section 7.04, Restricted Payments permitted by Section 7.07 and Liens permitted by Section 7.02;the Borrower.
Appears in 1 contract
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, (i) voluntarily sell, transfer, lease or otherwise dispose (including pursuant to a division) of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
(a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property or Badcock Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, be dedicated to the public domain or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (ii)(i) the transferee must be a Loan PartyParty (other than, prior to Payment in Full of Badcock Obligations, Badcock), (ii) to the extent constituting an Investment, such Investment must be a permitted Permitted Investment in a Restricted Subsidiary that is not a Loan Party or, prior to Payment in Full of Badcock Obligations, Badcock, in each case, in accordance with Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, or, prior to Payment in Full of Badcock Obligations, Badcock, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party or, prior to Payment in Full of Badcock Obligations, Badcock, in each case, in accordance with Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.03, 6.03 and Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.07 and Liens permitted by Section 7.026.02;
(f) Dispositions of property pursuant to sale and leaseback transactions permitted by Section 6.06 hereto;
(g) Dispositions of Permitted Investments;
(h) Dispositions of accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties);
(i) leases, subleases, service agreements, product sales, abandonments, licenses, sublicenses or other disposals (including of Intellectual Property and Badcock Intellectual Property), in each case, (A) granted in the ordinary course of business or (B) that do not materially interfere with the business of the Borrower and its Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events;
(k) Dispositions of property to Persons other than Subsidiaries (including the sale or issuance of Equity Interests of a Subsidiary and including the sale of real property) for fair market value (as determined by a Responsible Officer of the Lead Borrower in good faith) not otherwise permitted under this Section 6.05; provided that with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of (x) with respect to any single transaction or series of related transactions, $10,000,000 or (y) with respect to all other Dispositions in any fiscal year of the Lead Borrower not excluded from the requirements of this proviso pursuant to the immediately preceding subclause (x), $20,000,000, the Borrower or any Subsidiary shall receive not less than 75% of such consideration in excess of the amounts referred to subclauses (x) and (y) in the form of cash or Permitted Investments; provided, however, that solely for the purposes of this clause (k), (A) any liabilities (as shown on the most recent balance sheet of the Borrower or such Subsidiary or in the footnotes thereto) of the Borrower or such Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities, notes or other obligations or assets received by the Borrower or such Subsidiary from such transferee that are converted by the Borrower or such Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within one hundred and eighty (180) days following the closing of the applicable Disposition, shall be deemed to be cash, (C) Indebtedness of any Subsidiary that ceases to be a Subsidiary as a result of such Disposition (other than intercompany debt owed to the Borrower or its Subsidiaries), to the extent that the Borrower and all of the Subsidiaries (to the extent previously liable thereunder) are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition, shall be deemed to be cash and (D) any Designated Non-Cash Consideration received by the Borrower or such Subsidiary in respect of such Disposition having an aggregate fair market value (as determined by a Responsible Officer of the Lead Borrower in good faith), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess of $25,000,000, with the fair market value (as determined in good faith by the Lead Borrower) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash; provided, further, that, other than in respect of the Disposition described on Schedule 6.05(k), no Event of Default shall have occurred and be continuing at the time of, and after giving effect to, any Disposition made pursuant to this clause (k);
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions or forgiveness of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof;
(n) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment not prohibited hereunder, which assets are not used or useful to the core or principal business of the Borrower and its Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(o) Dispositions of assets that are not Collateral or Badcock Collateral in an aggregate amount not to exceed the greater of $8,000,000 and 2.5% of Consolidated EBITDA for the most recently ended Test Period in any fiscal year of the Lead Borrower;
(p) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(q) any Disposition of the Equity Interests of any Immaterial Subsidiary;
(r) other Dispositions in an aggregate amount not to exceed the greater of $8,000,000 and 2.5% of Consolidated EBITDA for the most recently ended Test Period in any fiscal year of the Lead Borrower;
(s) the sale by the Liberty Parties of Liberty Area Development Rights, Liberty Franchise Rights, and store locations (and customer lists and other assets related thereto), in each case in the ordinary course of business and consistent with past practice; provided further that no Event of Default under paragraph (a), (b), (d) (solely as a result of an Event of Default due to failure to comply with a Financial Maintenance Covenant, subject to the cure rights set forth in Section 7.02 and solely after the expiration of the applicable Cure Expiration Date), (h) or (i) of Section 7.01 shall have occurred and be continuing at the time of, and after giving effect to, any Disposition made pursuant to this clause (s); and
Appears in 1 contract
Sources: First Lien Credit Agreement (Franchise Group, Inc.)
Asset Sales. (i) The Borrower will not, and nor will not it permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest and any Intellectual Property owned by it or it, and (ii) the Borrower will not permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than (A) issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable 101 Requirements of Law and other than Law, (B) issuing Equity Interests to the Borrower or a any Restricted Subsidiary in compliance with Section 7.04(c6.04(c), (C) any non-wholly-owned Restricted Subsidiary issuing Equity Interests of such Subsidiary to each owner of Equity Interests of such Subsidiary ratably based on their relative ownership interests) and (D) issuing securities pursuant to a management equity plan, stock option plan, phantom equity plan or any other management, employee benefit or other compensatory plan or agreement (and any successor plans or arrangements thereto)), in each case, having a fair market value (x) in excess of $250,000 in a single transaction or a series of related transactions or (y) in excess of $1,000,000 in the aggregate during the term of this Agreement (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its the Restricted Subsidiaries (including (i) allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidatedinvalidated or (ii) disposing of, discontinuing the use or maintenance of, abandoning, failing to pursue or otherwise allowing to lapse, expire, terminate or put into the public domain any of its Intellectual Property if the Borrower determines in its reasonable business judgment that such discontinuance is desirable in the conduct of its business);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of businessincluding on an intercompany basis);
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property property, or other assets of comparable or greater value or usefulness to the business or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a any Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 and Section 6.16 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party permitted by Section 6.04 and Section 6.16; provided that the aggregate amount of such Dispositions made by Loan Parties after the Effective Date in accordance Restricted Subsidiaries that are not Loan Parties in reliance on this clause (d), together with the aggregate amount of (x) all other Investments made in and Dispositions made to Restricted Subsidiaries that are not Loan Parties by Loan Parties after the Effective Date and (y) all Investments and Dispositions made in reliance on Section 7.04; 6.16(ii), shall not exceed $2,500,000;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.08 and Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e);
(f) Dispositions of cash and/or Permitted Investments;
(g) the sale or discount, in each case without recourse, of past due accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not for financing purposes; 102
(h) leases, subleases, licenses or sublicenses, in each case in the ordinary course of business and that do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(i) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(j) Dispositions of property to Persons other than the Borrower or any Restricted Subsidiary (including the sale or issuance of Equity Interests in a Restricted Subsidiary) not otherwise permitted under this Section 6.05 in an aggregate amount during the term of this Agreement not to exceed $2,500,000; provided, that (i) such Disposition is made for Fair Market Value and (ii) the Borrower or any Restricted Subsidiary shall receive not less than 75.0% of such consideration in the form of cash or Permitted Investments (provided, that for purposes of this clause (ii), the following shall be deemed to be cash or Permitted Investments: (1) any liabilities other than Prepetition Indebtedness (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto for which internal financial statements are available immediately preceding such date or, if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet in the good faith determination of the Borrower) of the Borrower or any of its Restricted Subsidiaries (other than liabilities that are by their terms subordinated to the Secured Obligations) that are extinguished in connection with the transactions relating to such Disposition, or that are assumed by the transferee, in each case, pursuant to an agreement that releases or indemnifies the Borrower and/or its applicable Restricted Subsidiaries, as the case may be, from further liability and (2) any notes or other obligations or other securities or assets received by the Borrower or any of its Restricted Subsidiaries from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Permitted Investments (to the extent of the cash or Permitted Investments received), in each case, within 60 days of the receipt thereof); provided, further, that the Net Proceeds thereof shall be applied in accordance with Section 2.11(d);
(k) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in, joint venture agreements and similar binding arrangements;
(l) the Freedom Winddown;
(m) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(n) [reserved];
(o) [reserved];
(p) [reserved];
(q) any merger, amalgamation, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S., (ii) or any Foreign Subsidiary in the U.S. and/or (iii) subject to the 103 consent of the Required Lenders (in their sole discretion), any Foreign Subsidiary in any other jurisdiction; and
(r) Dispositions of customer accounts receivable in connection with a Vendor Financing Program. Subject to Section 6.19, to the extent that any Collateral is Disposed of as expressly permitted by this Section 6.05 to any Person other than a Loan Party, subject to the proviso set forth in clause (a) of the definition of Excluded Subsidiary with respect to any Disposition of less than 100% of the Equity Interests of a wholly-owned subsidiary, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent, acting at the direction of the Required Lenders, shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing, and shall be entitled to rely, without independent investigation on a certificate of Responsible Officer of the Borrower in connection with the foregoing (which shall be delivered to the Administrative Agent upon request therefor).
Appears in 1 contract
Sources: Superpriority Secured Debtor in Possession Credit Agreement (Invacare Corp)
Asset Sales. The Neither Holdings, Safari (solely to the extent on or after the Collateral and Guarantee Release Date) nor the Borrower will, nor will not, and will not they permit any Restricted Subsidiary Subsidiary, to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Holdings, the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of Holdings, the Borrower and its the Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to Holdings, the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04 (other than Section 6.04(s)), Restricted Payments permitted by Section 7.07 6.08 and Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e);
(f) Dispositions of Permitted Investments;
(g) Dispositions of (A) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) and (B) receivables and related assets pursuant to any Permitted Receivables Financing;
(h) leases, subleases, licenses or sublicenses, in each case in the ordinary course of business and that do not materially interfere with the business of Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole;
(i) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(j) Dispositions of property to Persons other than Holdings, the Borrower or any of the Restricted Subsidiaries (including (x) the sale or issuance of Equity Interests in a Restricted Subsidiary and (y) any Sale Leaseback) not otherwise permitted under this Section 6.05; provided that (i) such Disposition is made for Fair Market Value and (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $200,000,000 for any transaction or series of related transactions, the Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that (1) for the purposes of this clause (ii), (A) any liabilities (as shown on the most recent balance sheet of Holdings provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which Holdings, the Borrower and the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities received by Holdings, the Borrower or such Restricted Subsidiary from such transferee that are converted by Holdings, the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by Holdings, the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (j) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of 1.00% of Consolidated Total Assets for the most recently ended Test Period, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash and (2) the requirement that not less than 75% of consideration be received in the form of cash or Permitted Investments shall not apply to any Disposition of property designated by the Borrower, promptly after consummation of such disposition, in a certificate of a Responsible Officer delivered to the Administrative Agent, as the “Permitted Non-Cash Disposition”; provided that the Fair Market Value of all Permitted Non-Cash Dispositions shall in no event exceed $700,000,000 in the aggregate;
(k) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(l) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of Holdings, the Borrower and the Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(m) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(n) Dispositions of property not otherwise permitted under this Section 6.05 having an aggregate purchase price not to exceed $500,000,000;
(o) the sale or discount (with or without recourse) (including by way of assignment or participation) of receivables (including, without limitation, trade and lease receivables) and related assets in connection with a Permitted Receivables Financing;
(p) (i) non-exclusive licenses and sublicenses of Intellectual Property or other general intangibles, and (ii) exclusive licenses and sublicenses of Intellectual Property or other general intangibles, in each case, in the ordinary course of business and that do not materially interfere with the business of Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole;
(q) the surrender or waiver of obligations of trade creditors or customers or other contract rights that were incurred in the ordinary course of business of the Borrower Parties or any Restricted Subsidiary, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer or compromise, settlement, release or surrender of a contract, tort or other litigation claim, arbitration or other disputes;
(r) Dispositions contemplated by the Reorganization Transactions;
(s) the unwinding of Swap Agreements permitted hereunder pursuant to their terms; and
(t) the Disposition of any Unrestricted Subsidiary.
Appears in 1 contract
Sources: Third Amendment (Broadcom LTD)
Asset Sales. The None of the U.S. Borrower will not, and will not permit or any Restricted Subsidiary towill (other than as required to effectuate the Transactions) assign or sell any income or revenues (including accounts receivable and royalties) or rights in respect of any thereof (except to the extent assigned or sold in connection with a Disposition of the assets to which such income, (irevenues or rights relate and which is otherwise permitted under this Agreement) voluntarily or sell, transfer, lease or otherwise dispose of, or exclusively license outside the ordinary course of business, any asset, including any Equity Interest owned by it or (ii) permit it, nor will any Restricted Subsidiary to issue any additional Equity Interest in such any Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the U.S. Borrower or a Restricted Subsidiary in compliance with Section 7.04(c)6.04, and other than directors’ qualifying shares and other nominal amounts of Equity Interests that are required to be held by other Persons under Requirements of Law) (eachany such transaction, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of the following in the ordinary course of business: (i) obsolete, damagedworn-out, used, used or surplus or worn out property, whether now owned or hereafter acquired, and Dispositions of non-core assets or property, including to the extent such assets or property, are no longer used or useful, useful or economically practicable to maintain, in necessary for the conduct operation of the core or principal U.S. Borrower’s and the Restricted Subsidiaries’ business of the Borrower and its Restricted Subsidiaries (including allowing any registration registrations or application any applications for registration of any immaterial Intellectual Property that is no longer used or usefulto expire, or economically practicable to maintain, to lapse, go abandoned, lapse or be invalidatedabandoned), (ii) inventory and goods held for sale or other immaterial assets, and (iii) cash and Cash Equivalents;
(b) Dispositions leases, subleases, licenses or sublicenses of inventory and other assets (including Settlement Assets) in the ordinary course of business any real or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) personal property in the ordinary course of business;
(c) Dispositions to the U.S. Borrower or any Restricted Subsidiary; provided that any such Disposition involving a Restricted Subsidiary that is not a Loan Party, (i) to the extent such Disposition constitutes an Investment, shall be made in compliance with Section 6.04 and (ii) otherwise, shall be made in compliance with Section 6.09;
(d) Dispositions of accounts receivable in connection with the compromise or collection thereof in the ordinary course of business and not as part of any accounts receivables financing transaction;
(e) Dispositions of assets subject to any casualty or condemnation proceeding (including in lieu thereof);
(f) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds the proceeds of such Disposition disposition are promptly applied to the purchase price of such replacement property;
(dg) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyLiens permitted by Section 6.02, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; (e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.04, 6.04 and Restricted Payments permitted by Section 7.07 6.08;
(h) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and Liens similar binding arrangements;
(i) [reserved];
(j) Dispositions of the Equity Interest in, Indebtedness of, or other securities issued by, an Unrestricted Subsidiary;
(k) Dispositions of assets that are not permitted by any other clause of this Section; provided that (i) no Event of Default shall have occurred and be continuing both immediately prior to and immediately after such Disposition, (ii) the aggregate fair value of all assets sold, transferred, leased or otherwise disposed of in reliance on this clause shall not exceed 15% of Consolidated Total Assets of the U.S. Borrower in any fiscal year (measured as of the last day of the immediately preceding fiscal year for which financial information has been delivered pursuant to Section 7.02;5.01(a), or, prior thereto, as set forth in the Pro Forma Financial Statements); provided that unused amounts under this clause (ii) may be used in the following fiscal year so long as the aggregate fair value of all assets sold, transferred, leased or otherwise disposed of do not exceed 20% of Consolidated Total Assets of the U.S. Borrower in any fiscal year (measured as of the last day of the immediately preceding fiscal year for which financial information has been delivered pursuant to Section 5.01(a), or, prior thereto, as set forth in the Pro Forma Financial Statements) and (iii) all Dispositions made in reliance on this clause shall be for fair value and, other than Dispositions of assets having a fair value not in excess of $20,000,000 for any individual Disposition or $75,000,000 in the aggregate for all such Dispositions during the term of this Agreement, shall be made for at least 75% Cash Consideration; and
(l) Dispositions of Securitization Assets including pursuant to Permitted Securitization Financings.
Appears in 1 contract
Sources: Credit Agreement (Ingevity Corp)
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (including, in each case, pursuant to a Delaware LLC Division) (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its the Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, abandoned or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or property, (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement propertyproperty or (iii) such Disposition is allowable under Section 1031 of the Code, or any comparable or successor provision is for like property (and any boot thereon) and for use in a Similar Business;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary (including as a result of a Delaware LLC Division);
(e) Dispositions permitted by Section 6.03, Investments permitted by Section 6.04, Restricted Payments permitted by Section 6.08, Liens permitted by Section 6.02, in each case, other than by reference to this Section 6.05(e);
(f) any issuance, sale, pledge or other Disposition of Equity Interests in, or Indebtedness, or other securities of, an Unrestricted Subsidiary; provided that if ;
(g) Dispositions of Permitted Investments;
(h) Dispositions of (A) accounts receivable in connection with the transferor in such a transaction is a Loan Party, then either collection or compromise thereof (including sales to factors or other third parties) and (B) receivables and related assets pursuant to any Permitted Receivables Financing;
(i) leases, subleases, licenses or sublicenses (including the transferee must be provision of software under an open source license), in each case in the ordinary course of business and that do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a Loan Party, whole;
(iij) transfers of property subject to Casualty Events upon receipt of the extent constituting an Investment, Net Proceeds of such Investment must be a permitted Investment Casualty Event;
(k) Dispositions of property to Persons other than the Borrower or any of the Restricted Subsidiaries (including (x) the sale or issuance of Equity Interests in a Restricted Subsidiary and (y) any Sale Leaseback) not otherwise permitted under this Section 6.05; provided that (i) such Disposition is not made for Fair Market Value and (ii) except in the case of a Loan Party Permitted Asset Swap, a Sale Leaseback or the Disposition of a Multiplex theatre, with respect to any Disposition pursuant to this clause (l) for a purchase price in accordance with Section 7.04 excess of the greater of (x) $50,000,000 and (y) 5% of Consolidated EBITDA for the most recently ended Test Period for all transactions permitted pursuant to this clause (l) since the Effective Date, the Borrower or (iii) to the extent constituting a Disposition to a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that is not for the purposes of this clause (ii), (A) the greater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of the Borrower (or a Loan PartyParent Entity) provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such Disposition is for fair market value liabilities that would have been reflected on the balance sheet of the Borrower (or Parent Entity) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Loan Document Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases the Borrower or such Restricted Subsidiary from such liabilities, (B) any securities received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any promissory note Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (l) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of 5% of Consolidated Total Assets for the most recently ended Test Period as of the time of receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other non-cash consideration received Investment permitted hereunder, which assets are not used or useful to the core or principal business of the Borrower and the Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority or otherwise required by a Governmental Authority in respect thereof is connection with a permitted investment Permitted Acquisition;
(n) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; casualty to the respective insurer of such real property as part of an insurance settlement;
(eo) Dispositions of property for Fair Market Value not otherwise permitted under this Section 6.05 having an aggregate purchase price not to exceed the greater of (A) $200,000,000 and (B) 20% of Consolidated EBITDA for the most recently ended Test Period at the time of such Disposition;
(p) the sale or discount (with or without recourse) (including by Section 7.03way of assignment or participation) of other receivables (including, Investments permitted by Section 7.04without limitation, Restricted Payments permitted by Section 7.07 trade and Liens permitted by Section 7.02lease receivables) and related assets in connection with a Permitted Receivables Financing;
(q) the unwinding of any Swap Obligations or Cash Management Obligations; and
(r) disposition of any assets for not less than the Fair Market Value of assets set forth on Schedule 6.05.
Appears in 1 contract
Sources: Credit Agreement (Amc Entertainment Holdings, Inc.)
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, farm-out, lease or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
(a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its the Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property (other than any Oil and Gas Property) to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.07 and Liens permitted by Section 7.026.02;
(f) Dispositions of property pursuant to sale-leaseback transactions permitted by Section 6.06 hereto;
(g) Dispositions of Permitted Investments;
(h) Dispositions of accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties);
(i) leases, subleases, service agreements, product sales, licenses or sublicenses (including licenses and sublicenses of Intellectual Property), in each case that do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events;
(k) Dispositions of property to Persons other than Restricted Subsidiaries (including the sale or issuance of Equity Interests of a Restricted Subsidiary) for fair market value (as determined by a Responsible Officer of the Borrower in good faith) not otherwise permitted under this Section 6.05 as long as no Event of Default exists or would result therefrom (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default existed or would have resulted from such Disposition); provided that with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of $10,000,000, the Borrower or any Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that solely for the purposes of this clause (k), (A) any liabilities (as shown on the most recent balance sheet of the Borrower or such Restricted Subsidiary or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the First Lien Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities, notes or other obligations or assets received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within one hundred and eighty (180) days following the closing of the applicable Disposition, shall be deemed to be cash, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to the Borrower or its Restricted Subsidiaries), to the extent that the Borrower and all of the Restricted Subsidiaries (to the extent previously liable thereunder) are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition, shall be deemed to be cash and (D) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate fair market value (as determined by a Responsible Officer of the Borrower in good faith), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess of $11,500,000 at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value (as determined in good faith by the Borrower) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions or forgiveness of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof;
(n) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment not prohibited hereunder, which assets are not used or useful to the core or principal business of the Borrower and its Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(o) [Reserved];
(p) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement; and
(q) any Disposition of the Equity Interests of any Immaterial Subsidiary or Unrestricted Subsidiary.
Appears in 1 contract
Sources: First Lien Credit Agreement (Brigham Minerals, Inc.)
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, (i) voluntarily sell, transfer, lease or otherwise dispose (including pursuant to a division) of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
(a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property or Badcock Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, be dedicated to the public domain or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; (e) Dispositions permitted by Section 7.03, Investments permitted by Section 7.04, Restricted Payments permitted by Section 7.07 and Liens permitted by Section 7.02;
Appears in 1 contract
Sources: First Lien Credit Agreement (Franchise Group, Inc.)
Asset Sales. The Borrower Holdings will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower Holdings or a any Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
: (a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower Holdings and its any Restricted Subsidiaries Subsidiary (including by ceasing to enforce, abandoning, allowing any registration to lapse, terminate or application for registration be invalidated, discontinuing the use or maintenance of or putting into the public domain, any Intellectual Property that is is, in the reasonable judgment of Holdings or the Restricted Subsidiaries, no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidatedin respect of which the Holdings or any Restricted Subsidiary determines in its reasonable business judgment that such action or inaction is desirable);
; (b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
; (c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
; (d) Dispositions of property to the Borrower Holdings or a any Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (iii) such Disposition is for Fair Market Value (as determined in good faith by the Borrower) and to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.046.04; (e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.07 and Liens permitted by Section 7.02;6.02; (f) Dispositions of property acquired by Holdings or any of the Restricted Subsidiaries after the Effective Date pursuant to sale-leaseback transactions permitted pursuant to Section 6.06; (g) Dispositions of Permitted Investments; (h) Dispositions or forgiveness of accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties); (i) leases, subleases, service agreements, product sales, licenses or sublicenses (including licenses and sublicenses of Intellectual Property), in each case that do not materially interfere with the business of Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole; -124- [EMEA_ACTIVE 302040156_13]
Appears in 1 contract
Sources: Credit Agreement (LivaNova PLC)
Asset Sales. The Holdings and the Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Holdings, the Borrower or a any Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
(a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets property no longer used or propertyuseful, or economically practicable or commercially desirable to maintain, in the conduct of the business of Holdings and any Restricted Subsidiary (including assets by ceasing to enforce, allowing the lapse, abandonment or propertyinvalidation of or discontinuing the use or maintenance of or putting into the public domain any Intellectual Property that is, in the reasonable judgment of Holdings, the Borrower or the Restricted Subsidiaries, no longer used or useful, or economically practicable or commercially desirable to maintain, or in the conduct respect of the core or principal business of which Holdings, the Borrower and or any Restricted Subsidiary determines in its Restricted Subsidiaries (including allowing any registration reasonable business judgment that such action or application for registration of any Intellectual Property that inaction is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidateddesirable);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property (or a functional equivalent of such property) or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property (or a functional equivalent of such property);
(d) Dispositions of property to Holdings, the Borrower or a any Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.07 and Liens permitted by Section 7.026.02;
(f) Dispositions of property acquired by Holdings, the Borrower or any of the Restricted Subsidiaries after the Effective Date pursuant to sale-leaseback transactions;
(g) Dispositions of Permitted Investments;
(h) Dispositions or forgiveness of accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties);
(i) leases, subleases, service agreements, product sales, transfers, licenses or sublicenses (including transfers, licenses and sublicenses of Intellectual Property), in each case that do not materially interfere with the business of Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events;
(k) Dispositions of property to Persons other than Restricted Subsidiaries (including the sale or issuance of Equity Interests of a Restricted Subsidiary) for fair market value (as determined by a Responsible Officer of the Borrower in good faith) not otherwise permitted under this Section 6.05; provided that with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of $20,000,000, Holdings, the Borrower or such Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that solely for the purposes of this clause (k), (A) any liabilities (as shown on the most recent balance sheet of Holdings, the Borrower or such Restricted Subsidiary or in the footnotes thereto) of Holdings, the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which Holdings, the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities, notes or other obligations or assets received by Holdings, the Borrower or such Restricted Subsidiary from such transferee that are converted by Holdings, the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within one hundred and eighty (180) days following the closing of the applicable Disposition, shall be deemed to be cash, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to Holdings or its Restricted Subsidiaries), to the extent that Holdings, the Borrower and all of the Restricted Subsidiaries (to the extent previously liable thereunder) are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition, shall be deemed to be cash, (D) any Designated Non-Cash Consideration received by Holdings, the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate fair market value (as determined by a Responsible Officer of the Borrower in good faith), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess of $20,000,000 at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value (as determined by a Responsible Officer of the Borrower in good faith) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash and (E) consideration received in connection with an asset swap shall be deemed “cash”;
(l) Dispositions of Investments in joint ventures or non-wholly owned Subsidiaries to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets not constituting Collateral hereunder, provided that the aggregate fair market value (as determined in good faith by the Borrower) of all such Dispositions, in the aggregate, shall not be in excess of the greater of (A) $41,700,000 and (B) 15% of Consolidated EBITDA at the time of such Disposition;
(n) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment not prohibited hereunder, which assets are not used or useful to the core or principal business of Holdings, the Borrower and the Restricted Subsidiaries; provided that the fair market value of such assets shall not exceed 30% of the consideration paid in such Permitted Acquisition or Investment or (B) made to obtain the approval of any applicable antitrust authority in connection with the Transactions;
(i) any Disposition of accounts receivable, Securitization Assets, any participations thereof, or related assets in connection with or any Qualified Securitization Facility or (iii) the sale or discount of inventory, accounts receivable or notes receivable in the ordinary course of business or the conversion of accounts receivable to notes receivable;
(p) transfers of condemned real property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of real property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(q) Dispositions constituting any part of a Permitted Reorganization;
(r) Dispositions of Unrestricted Subsidiaries (other than Unrestricted Subsidiaries the primary assets of which are Permitted Investments received from Holdings or a Restricted Subsidiary) or assets acquired from Unrestricted Subsidiaries;
(s) any swap of assets in exchange for services or other assets in the ordinary course of business of comparable or greater fair market value of usefulness to the business of Holdings and its Restricted Subsidiaries, taken as a whole, as determined in good faith by the Borrower; provided that the aggregate fair market value (as determined in good faith by the Borrower) of all assets constituting Collateral that are exchanged for other assets not constituting Collateral pursuant to this clause (s) shall not exceed the greater of (x) $41,700,000 and (y) 15% of Consolidated EBITDA at the time of such swap of assets;
(t) other Dispositions in an aggregate amount not be in excess of the greater of (A) $55,600,000 and (B) 20% of Consolidated EBITDA at the time of such Disposition;
(u) samples, including time-limited evaluation software, provided to customers or prospective customers;
(v) de minimis amounts of equipment or other assets provided to employees;
(w) the unwinding of any Cash Management Obligations or Swap Agreement pursuant to its terms;
(x) sales, transfers, leases or other dispositions to Holdings or a Restricted Subsidiary pursuant to Intercompany License Agreements; and
(y) Holdings and any Restricted Subsidiary may (i) terminate or otherwise collapse its cost sharing agreements with Holdings or any Restricted Subsidiary and settle any crossing payments in connection therewith, (ii) convert any intercompany Indebtedness to Equity Interests, (iii) transfer any intercompany Indebtedness to Holdings or any Restricted Subsidiary, (iv) settle, discount, write off, forgive or cancel any intercompany Indebtedness or other obligation owing by Holdings or any Restricted Subsidiary, (v) settle, discount, write off, forgive or cancel any Indebtedness owing by any present or former consultants, directors, officers or employees, Holdings or any Restricted Subsidiary or any of their successors or assigns or (vi) surrender or waive contractual rights and settle or waive contractual or litigation claims.
Appears in 1 contract
Asset Sales. The Neither Indemnitor nor the Borrower will, nor will not, and will not they permit any Indemnitor Group Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any assetasset (other than assets sold, transferred, leased or otherwise disposed of in a single transaction or a series of related transactions with a fair market value of $25,000,000 or less), including any Equity Interest owned by it it, nor will Indemnitor or (ii) the Borrower permit any Indemnitor Group Restricted Subsidiary to issue any additional Equity Interest in such Indemnitor Group Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Indemnitor, the Borrower or a another Indemnitor Group Restricted Subsidiary in compliance with Section 7.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaningSubsidiary), except:
(a) Dispositions sales, transfers, leases and other dispositions of (i) inventory, (ii) used, obsolete, damaged, used, surplus or worn out propertyor surplus equipment, whether now owned or hereafter acquired, and Dispositions of non-core assets or property, including assets or property, (iii) property no longer used or useful, or economically practicable to maintain, useful in the conduct of the core or principal business of Indemnitor, the Borrower and its the Indemnitor Group Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or usefulintellectual property), or economically practicable to maintain, to lapse, go abandoned, or be invalidated);
(biv) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets and (considered v) cash and Permitted Investments, in the aggregate) each case in the ordinary course of business;
(b) sales, transfers, leases and other dispositions to Indemnitor, the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary that is not a Loan Party shall, to the extent applicable, be made in compliance with Section 3.04 and Section 3.09;
(c) Dispositions sales, transfers and other dispositions or forgiveness of accounts receivable in connection with the compromise, settlement or collection thereof not as part of any accounts receivables financing transaction (including sales to factors and other third parties);
(d) (i) sales, transfers, leases and other dispositions of assets to the extent that such assets constitute an investment permitted by clause (j), (l) or (n) of Section 3.04 or another asset received as consideration for the disposition of any asset permitted by this Section (in each case, other than Equity Interests in a Indemnitor Group Restricted Subsidiary, unless all Equity Interests in such Indemnitor Group Restricted Subsidiary (other than directors’ qualifying shares) are sold) and (ii) sales, transfers, and other dispositions of the Equity Interests of a Indemnitor Group Restricted Subsidiary by Indemnitor, the Borrower or a Indemnitor Group Restricted Subsidiary to the extent such sale, transfer or other disposition would be permissible as an Investment in a Restricted Subsidiary permitted by Section 3.04(e) or Section 3.04(u);
(e) leases or subleases entered into in the ordinary course of business, to the extent that they do not materially interfere with the business of Indemnitor, the Borrower or any Indemnitor Group Restricted Subsidiary;
(f) non-exclusive licenses or sublicenses of IP Rights granted in the ordinary course of business or other licenses or sublicenses of IP Rights granted in the ordinary course of business that do not materially interfere with the business of Indemnitor, the Borrower or any Indemnitor Group Restricted Subsidiary;
(g) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, and transfers of property arising from foreclosure or similar action with regard to, any asset of Indemnitor, the Borrower or any Indemnitor Group Restricted Subsidiary;
(h) dispositions of assets to the extent that (i) such property is assets are exchanged for credit against the purchase price of similar replacement property assets or (ii) an amount equal to Net Proceeds the proceeds of such Disposition disposition are promptly applied to the purchase price of such replacement propertyassets;
(di) Dispositions dispositions permitted by Section 3.08;
(j) dispositions set forth on Schedule 6.05 of property to the Borrower or a Restricted SubsidiaryCurrent Credit Agreement (as in effect on the Distribution Date);
(k) sales, transfers, leases and other dispositions of assets that are not permitted by any other clause of this Section; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Partyaggregate fair value of all assets sold, transferred, leased or otherwise disposed of in reliance upon this Section 3.04(k) shall not exceed (A) in any fiscal year, 15% of Consolidated Total Assets as of the fiscal year most recently ended prior to such sale, transfer, lease or other disposition and (B) 40% of Consolidated Total Assets as of the fiscal year most recently ended prior to such sale, transfer, lease or other disposition and (ii) no Event of Default has occurred and is continuing or would result therefrom;
(l) sales, transfers or other dispositions of accounts receivable in connection with Permitted Receivables Facilities;
(m) sales, transfers or other dispositions of any assets (including Equity Interests) (A) acquired in connection with any acquisition or other investment permitted under Section 3.04, which assets are not used or useful to the core or principal business of the Borrower and the Indemnitor Group Restricted Subsidiaries and/or (B) made to obtain the approval of any applicable antitrust authority in connection with an acquisition permitted under Section 3.04; and
(n) sales, transfers or other dispositions of Investments in joint ventures to the extent constituting an Investmentrequired by, such Investment must or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by Sections 3.05(a)(iii), (a)(iv) and (b)) for a purchase price in excess of $25,000,000 shall be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is made for fair market value (as determined in good faith by the Borrower), and at least 75% of the consideration from all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by clauses (b), (d), (g) and or (h)) since the Effective Date, on a cumulative basis, is in the form of cash or Permitted Investments; provided further that (i) any promissory note consideration in the form of Permitted Investments that are disposed of for cash consideration within 30 Business Days after such sale, transfer or other non-disposition shall be deemed to be cash consideration in an amount equal to the amount of such cash consideration for purposes of this proviso, (ii) any liabilities (as shown on Indemnitor, the Borrower’s or such Indemnitor Group Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of Indemnitor, the Borrower or such Indemnitor Group Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable sale, transfer, lease or other disposition and for which Indemnitor, the Borrower and all the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing shall be deemed to be cash consideration in an amount equal to the liabilities so assumed and (iii) any Designated Non-Cash Consideration received by Indemnitor, the Borrower or such Subsidiary in respect thereof is a permitted investment in a Restricted Subsidiary of such sale, transfer, lease or other disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding, not a Loan Party in accordance excess of $45,000,000 at the time of the receipt of such Designated Non-Cash Consideration, with Section 7.04; (e) Dispositions permitted by Section 7.03the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, Investments permitted by Section 7.04, Restricted Payments permitted by Section 7.07 and Liens permitted by Section 7.02;shall be deemed to be cash consideration.
Appears in 1 contract
Sources: Indemnification and Reimbursement Agreement (Resideo Technologies, Inc.)
Asset Sales. The Neither Indemnitor nor the Borrower will, nor will not, and will not they permit any Indemnitor Group Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any assetasset (other than assets sold, transferred, leased or otherwise disposed of in a single transaction or a series of related transactions with a fair market value of $25,000,000 or less), including any Equity Interest owned by it it, nor will Indemnitor or (ii) the Borrower permit any Indemnitor Group Restricted Subsidiary to issue any additional Equity Interest in such Indemnitor Group Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Indemnitor, the Borrower or a another Indemnitor Group Restricted Subsidiary in compliance with Section 7.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaningSubsidiary), except:
(a) Dispositions sales, transfers, leases and other dispositions of (i) inventory, (ii) used, obsolete, damaged, used, surplus or worn out propertyor surplus equipment, whether now owned or hereafter acquired, and Dispositions of non-core assets or property, including assets or property, (iii) property no longer used or useful, or economically practicable to maintain, useful in the conduct of the core or principal business of Indemnitor, the Borrower and its the Indemnitor Group Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or usefulintellectual property), or economically practicable to maintain, to lapse, go abandoned, or be invalidated);
(biv) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets and (considered v) cash and Permitted Investments, in the aggregate) each case in the ordinary course of business;
(b) sales, transfers, leases and other dispositions to Indemnitor, the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary that is not a Loan Party shall, to the extent applicable, be made in compliance with Section 3.04 and Section 3.09;
(c) Dispositions sales, transfers and other dispositions or forgiveness of accounts receivable in connection with the compromise, settlement or collection thereof not as part of any accounts receivables financing transaction (including sales to factors and other third parties);
(i) sales, transfers, leases and other dispositions of assets to the extent that such assets constitute an investment permitted by clause (j), (l) or (n) of Section 3.04 or another asset received as consideration for the disposition of any asset permitted by this Section (in each case, other than Equity Interests in a Indemnitor Group Restricted Subsidiary, unless all Equity Interests in such Indemnitor Group Restricted Subsidiary (other than directors’ qualifying shares) are sold) and (ii) sales, transfers, and other dispositions of the Equity Interests of a Indemnitor Group Restricted Subsidiary by Indemnitor, the Borrower or a Indemnitor Group Restricted Subsidiary to the extent such sale, transfer or other disposition would be permissible as an Investment in a Restricted Subsidiary permitted by Section 3.04(e) or Section 3.04(u);
(e) leases or subleases entered into in the ordinary course of business, to the extent that they do not materially interfere with the business of Indemnitor, the Borrower or any Indemnitor Group Restricted Subsidiary;
(f) non-exclusive licenses or sublicenses of IP Rights granted in the ordinary course of business or other licenses or sublicenses of IP Rights granted in the ordinary course of business that do not materially interfere with the business of Indemnitor, the Borrower or any Indemnitor Group Restricted Subsidiary;
(g) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, and transfers of property arising from foreclosure or similar action with regard to, any asset of Indemnitor, the Borrower or any Indemnitor Group Restricted Subsidiary;
(h) dispositions of assets to the extent that (i) such property is assets are exchanged for credit against the purchase price of similar replacement property assets or (ii) an amount equal to Net Proceeds the proceeds of such Disposition disposition are promptly applied to the purchase price of such replacement propertyassets;
(di) Dispositions dispositions permitted by Section 3.08;
(j) dispositions set forth on Schedule 6.05 of property to the Borrower or a Restricted SubsidiaryCurrent Credit Agreement (as in effect on the Distribution Date);
(k) sales, transfers, leases and other dispositions of assets that are not permitted by any other clause of this Section; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Partyaggregate fair value of all assets sold, transferred, leased or otherwise disposed of in reliance upon this Section 3.04(k) shall not exceed (A) in any fiscal year, 15% of Consolidated Total Assets as of the fiscal year most recently ended prior to such sale, transfer, lease or other disposition and (B) 40% of Consolidated Total Assets as of the fiscal year most recently ended prior to such sale, transfer, lease or other disposition and (ii) no Event of Default has occurred and is continuing or would result therefrom;
(l) sales, transfers or other dispositions of accounts receivable in connection with Permitted Receivables Facilities;
(m) sales, transfers or other dispositions of any assets (including Equity Interests) (A) acquired in connection with any acquisition or other investment permitted under Section 3.04, which assets are not used or useful to the core or principal business of the Borrower and the Indemnitor Group Restricted Subsidiaries and/or (B) made to obtain the approval of any applicable antitrust authority in connection with an acquisition permitted under Section 3.04; and
(n) sales, transfers or other dispositions of Investments in joint ventures to the extent constituting an Investmentrequired by, such Investment must or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by Sections 3.05(a)(iii), (a)(iv) and (b)) for a purchase price in excess of $25,000,000 shall be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is made for fair market value (as determined in good faith by the Borrower), and at least 75% of the consideration from all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by clauses (b), (d), (g) and or (h)) since the Effective Date, on a cumulative basis, is in the form of cash or Permitted Investments; provided further that (i) any promissory note consideration in the form of Permitted Investments that are disposed of for cash consideration within 30 Business Days after such sale, transfer or other non-disposition shall be deemed to be cash consideration in an amount equal to the amount of such cash consideration for purposes of this proviso, (ii) any liabilities (as shown on Indemnitor, the Borrower’s or such Indemnitor Group Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of Indemnitor, the Borrower or such Indemnitor Group Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable sale, transfer, lease or other disposition and for which Indemnitor, the Borrower and all the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing shall be deemed to be cash consideration in an amount equal to the liabilities so assumed and (iii) any Designated Non-Cash Consideration received by Indemnitor, the Borrower or such Subsidiary in respect thereof is a permitted investment in a Restricted Subsidiary of such sale, transfer, lease or other disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding, not a Loan Party in accordance excess of $45,000,000 at the time of the receipt of such Designated Non-Cash Consideration, with Section 7.04; (e) Dispositions permitted by Section 7.03the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, Investments permitted by Section 7.04, Restricted Payments permitted by Section 7.07 and Liens permitted by Section 7.02;shall be deemed to be cash consideration.
Appears in 1 contract
Sources: Indemnification and Reimbursement Agreement (Resideo Technologies, Inc.)
Asset Sales. The Borrower Borrowers will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (including, in each case, pursuant to a Delaware LLC Division) (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the any Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and consistent with past practices and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower Borrowers and its Restricted their Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, abandoned or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of businessconsistent with past practices;
(c) Dispositions of property (other than any Theater Assets with respect to any Disposition by the Odeon Affected Group) to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or property, (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement propertyproperty or (iii) such Disposition is allowable under Section 1031 of the Code, or any comparable or successor provision is for like property (and any boot thereon) and for use in a Similar Business;
(d) Dispositions of property to the Borrower Borrowers or a Restricted Subsidiary; provided that if the transferor in such Subsidiary (including as a transaction is result of a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; Delaware LLC Division);
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 and 6.08, Liens permitted by Section 7.026.02, in each case, other than by reference to Section 6.05;
(f) Dispositions in connection with the Transactions;
(g) Dispositions of Permitted Investments;
(h) Dispositions of accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties); provided that, any such Dispositions by a member of the Odeon Affected Group shall be made in the ordinary course of business and consistent with past practices and not for any transaction or series of transactions which is for the purpose of materially reducing the value of the Collateral or disadvantaging the Lenders in respect of their rights as creditors relative to other creditors;
(i) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and consistent with past practices and that do not materially interfere with the business of the Borrowers and their Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(k) Dispositions of property to Persons other than the Borrowers, any Subsidiary or any Affiliate thereof (including the sale or issuance of Equity Interests in a Subsidiary) not otherwise permitted under this Section 6.05; provided that
(i) such Disposition is made for Fair Market Value and
(ii) except in the case of a Permitted Asset Swap, with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of $1,000,000 (or, with respect to any Disposition by any member of the Odeon Affected Group, $350,000), the Borrowers or a Subsidiary shall receive not less than 100% of such consideration in the form of cash; provided, however, that for the purposes of this clause (ii), any securities received by such Borrower or such Subsidiary from such transferee that are converted by such Borrower or such Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of the Borrowers and their Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority or otherwise required by a Governmental Authority in connection with a Permitted Acquisition;
(n) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(o) Dispositions of property for Fair Market Value not otherwise permitted under this Section 6.05 having an aggregate purchase price not to exceed $5,000,000; provided that, with respect to any member of the Odeon Affected Group, such aggregate purchase price shall not exceed $2,000,000;
(p) [reserved]; and
(q) the unwinding of any Swap Obligations or Cash Management Obligations. In addition, neither AMC nor any of its Subsidiaries may make any Disposition to any Affiliate thereof (other than AMC and its Subsidiaries as permitted under this Agreement).
Appears in 1 contract
Sources: Credit Agreement (Amc Entertainment Holdings, Inc.)
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose (including pursuant to a division) of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
(a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, AMERICAS 107903477 such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.03, 6.03 and Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.07 and Liens permitted by Section 7.026.02;
(f) Dispositions of property pursuant to sale and leaseback transactions permitted by Section 6.06 hereto;
(g) Dispositions of Permitted Investments;
(h) Dispositions of accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties);
(i) leases, subleases, service agreements, product sales, abandonments, licenses, sublicenses or other disposals (including of Intellectual Property), in each case that do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events;
(k) Dispositions of property to Persons other than Restricted Subsidiaries (including the sale or issuance of Equity Interests of a Restricted Subsidiary) for fair market value (as determined by a Responsible Officer of the Borrower in good faith) not otherwise permitted under this Section 6.05; provided that with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of (x) with respect to any single transaction or series of related transactions, the greater of $12,500,000 and 10.0% of the Consolidated EBITDA as of the most recently ended Test Period, or (y) with respect to all other Dispositions in any fiscal year not excluded from the requirements of this proviso pursuant to the immediately preceding subclause (x), the greater of $25,000,000 and 20.0% of the Consolidated EBITDA as of the most recently ended Test Period, the Borrower or any Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that solely for the purposes of this clause (k), (A) any liabilities (as shown on the most recent balance sheet of the Borrower or such Restricted Subsidiary or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities, notes or other obligations or assets received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within one hundred and eighty (180) days following the closing of the applicable Disposition, shall be deemed to be cash, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to the Borrower or its Restricted Subsidiaries), to the extent that the Borrower and all of the Restricted AMERICAS 107903477 Subsidiaries (to the extent previously liable thereunder) are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition, shall be deemed to be cash and (D) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate fair market value (as determined by a Responsible Officer of the Borrower in good faith), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess of the greater of $40,000,000 and 33.0% of Consolidated EBITDA at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value (as determined in good faith by the Borrower) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions or forgiveness of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof;
(n) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment not prohibited hereunder, which assets are not used or useful to the core or principal business of the Borrower and its Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(o) Dispositions of assets that are not Collateral in an aggregate amount not to exceed the greater of $20,000,000 and 17.0% of Consolidated EBITDA for the most recently ended Test Period in any calendar year (which amount, if not used in any calendar year, may be carried forward to the immediately succeeding calendar year (but to no other calendar year));
(p) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(q) any Disposition of the Equity Interests of any Immaterial Subsidiary or Unrestricted Subsidiary; and
(r) other Dispositions in an aggregate amount not to exceed the greater of $40,000,000 and 33.0% of Consolidated EBITDA for the most recently ended Test Period. Notwithstanding anything to the contrary contained in this Section 6.05, no Loan Party shall, directly or indirectly, sell or otherwise transfer (except for non-exclusive leases or non-exclusive licenses with respect thereto) any Material Intellectual Property as of the Effective Date to any non-Loan Party.
Appears in 1 contract
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
(a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, and Dispositions of non-core assets or property, property (including assets or property, of property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted Subsidiaries but excluding non-core assets or property acquired in connection with any Permitted Acquisition or other Investment not prohibited hereunder) (including allowing any registration or application for registration of any Intellectual Property (excluding Material Intellectual Property) that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated);
(b) Dispositions (other than with respect to Material Intellectual Property) of (i) inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and (ii) immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property equipment to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property, in each case, in the ordinary course of business;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, Party or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04;
(e) Dispositions permitted by Section 6.03, Investments permitted by Section 6.04, Restricted Payments permitted by Section 6.07 and Liens permitted by Section 6.02;
(f) Dispositions of property pursuant to sale-leaseback transactions permitted by Section 6.06 hereto;
(g) Dispositions of Permitted Investments in the ordinary course of business;
(h) Dispositions of accounts receivable in connection with the collection or compromise thereof (iiiincluding sales to factors or other third parties) in the ordinary course of business;
(i) leases, subleases, service agreements, product sales, abandonments, licenses, sublicenses or other disposals, in each case, (i) other than in respect of Intellectual Property and (ii) in the ordinary course of business and that does not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events;
(k) Dispositions of property (other than Material Intellectual Property) to Persons other than Restricted Subsidiaries (including the extent constituting a Disposition to sale or issuance of Equity Interests of a Restricted Subsidiary that is not a Loan Party, such Disposition is Subsidiary) for fair market value (as determined by a Responsible Officer of the Borrower in good faith faith) not otherwise permitted under this Section 6.05, so long as no Event of Default shall have occurred and be continuing or would result from any such Disposition; provided that (i) with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of $1,000,000, the Borrower or any Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash and (ii) any Designated Non-Cash Consideration received by the BorrowerBorrower or such Restricted Subsidiary in respect of such Disposition having an aggregate fair market value (as determined by a Responsible Officer of the Borrower in good faith), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k), shall not exceed $3,000,000 in the aggregate (with the fair market value (as determined by a Responsible Officer of the Borrower in good faith) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value);
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions or forgiveness of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof;
(n) Dispositions of any promissory note assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition, which assets are not used or useful to the core or principal business of the Borrower and its Restricted Subsidiaries, so long as the aggregate fair market value (as determined by a Responsible Officer of the Borrower in good faith) of all such assets subject to Dispositions made in reliance on this clause (A) does not exceed $10,000,000 and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(o) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(p) [reserved];
(q) any disposition of property (i) between or among Loan Parties (other than Holdings) or (ii) between or among any non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary Loan Parties;
(r) any Disposition of any Material Intellectual Property to any Person that is not a Loan Party so long as the Administrative Agent shall have consented to such Disposition in accordance with Section 7.04its sole discretion; and
(es) Dispositions permitted by Section 7.03, Investments permitted by Section 7.04, Restricted Payments permitted by Section 7.07 any Disposition of other assets for fair market value not to exceed $2,000,000 in the aggregate; and
(t) transfer pricing and Liens permitted by Section 7.02;cost sharing arrangements among any Loan Party and any non-Loan Party.
Appears in 1 contract
Sources: Credit Agreement (Pluralsight, Inc.)
Asset Sales. The Neither Holdings nor the Borrower will, nor will not, and will not they permit any Restricted Subsidiary or Intermediate Parent to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it it, nor will Holdings or (ii) the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Holdings, the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c)6.01(b) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of Holdings, any Intermediate Parent, the Borrower and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.08 and Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e);
(f) Dispositions of property acquired by Holdings, the Borrower or any of its Restricted Subsidiaries after the Effective Date pursuant to sale-leaseback transactions permitted by Section 6.06;
(g) Dispositions of Permitted Investments;
(h) Dispositions of accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties);
(i) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and that do not materially interfere with the business of Holdings, the Borrower and its Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(k) Dispositions of property to Persons other than Restricted Subsidiaries (including the sale or issuance of Equity Interests of a Restricted Subsidiary) not otherwise permitted under this Section 6.05; provided that (i) such Disposition is made for Fair Market Value and (ii) with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of $30,000,000 for any transaction or series of related transaction, Holdings, the Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that for the purposes of this clause (ii), (A) any liabilities (as shown on the most recent balance sheet of the Borrower provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which Holdings, any Intermediate Parent, the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities received by Holdings, any Intermediate Parent, the Borrower or such Restricted Subsidiary from such transferee that are converted by Holdings, any Intermediate Parent, the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by Holdings, any Intermediate Parent, the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess of 2.5% of Consolidated Total Assets for the most recently ended Test Period as of the time of the receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of Intermediate Parent, the Borrower and the Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition; and
(n) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement.
Appears in 1 contract
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any assetasset (in one transaction or in a series of related transactions and whether effected pursuant to a Division or otherwise), including any Equity Interest owned by it or (ii) it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals or other Persons to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Holdings, the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(iii)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its the Restricted Subsidiaries (including allowing any Intellectual Property (and any related registration or application for registration of any Intellectual Property application) that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, abandoned or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or property, (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement propertyproperty or (iii) such Disposition qualifies for non-recognition treatment under Section 1031 of the Code, or any comparable or successor provision for like-kind property (and any boot thereon) and for use in a Similar Business;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments and prepayments, purchases and redemptions of Indebtedness permitted by Section 7.07 6.08, and Liens ▇▇▇▇▇ permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e);
(f) any issuance, sale or pledge of Equity Interests in, or Indebtedness, or other securities of, an Unrestricted Subsidiary;
(g) Dispositions of Permitted Investments;
(h) Dispositions of (A) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) and (B) receivables and related assets pursuant to any Permitted Receivables Financing;
(i) leases, subleases, service agreements, covenants not to sue, licenses or sublicenses (including agreements involving the provision of software under an open source license, in copy or as a service, and related data and services), in each case that do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(k) other Dispositions; provided that (i) such Disposition is made for Fair Market Value and (ii) except in the case of a Permitted Asset Swap, with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of the greater of (x) $10,000,000 and (y) 1.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period as of such time determined on a Pro Forma Basis for any transaction or series of related transactions, the Borrower or a Restricted Subsidiary shall receive not less than (I) 75% of such consideration in the form of cash or Permitted Investments for all transactions permitted pursuant to this clause (k) since the Effective Date or (II) 50% of such consideration for any individual transaction or series of related transactions in the form of cash or Permitted Investments; provided, however, that for the purposes of this clause (ii), (A) the greater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of the Borrower (or a Parent Entity) provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of the Borrower (or a Parent Entity) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower, of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases the Borrower or such Restricted Subsidiary from such liabilities, (B) any securities received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash, (C) the amount of Indebtedness, other than liabilities that are by their terms subordinated to the Loan Document Obligations or any intercompany debt owed to the Borrower or any Restricted Subsidiary, that is of any Person that is no longer a Restricted Subsidiary as a result of such Disposition, to the extent that the Borrower and all Restricted Subsidiaries have been validly released from any guarantee of payment of such Indebtedness in connection with such Disposition, (D) the amount of consideration consisting of Indebtedness of any Loan Party (other than Junior Financing) received after the Effective Date from Persons who are not the Borrower or any Restricted Subsidiary and (E) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of the greater of (x) $20,000,000 and (y) 3.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period as of such time determined on a Pro Forma Basis, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of the Borrower and the Restricted Subsidiaries or (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(n) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(o) Dispositions by a captive insurance subsidiary of Investments;
(p) Dispositions of property for Fair Market Value not otherwise permitted under this Section 6.05 having an aggregate purchase price not to exceed the greater of (A) $20,000,000 and (B) 3.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period as of such time determined on a Pro Forma Basis;
(q) the sale or discount (with or without recourse) (including by way of assignment or participation) of other receivables (including, without limitation, trade and lease receivables) and related assets in connection with a Permitted Receivables Financing; and
(r) the unwinding of any Swap Obligations or Cash Management Obligations.
Appears in 1 contract
Sources: Credit Agreement (Vacasa, Inc.)
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it or (including any disposition of property pursuant to a Division/Series Transaction)or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than (x) issuing directors’ qualifying shares, shares and nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than (y) issuing Equity Interests to the Borrower or a Restricted Subsidiary or in the case of a Restricted Subsidiary that is not a Subsidiary Loan Party, joint venture partners in compliance with Section 7.04(c6.04(c), as applicable) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
: (a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated);
; (b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
; (c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
; (d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as reasonably determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof -160- is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.046.04; (e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.07 and Liens permitted by Section 7.02;6.02, in each case, other than by reference to this Section 6.05(e); (f) [reserved]; (g) Dispositions of Permitted Investments for cash; (h) Dispositions or forgiveness of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof (including sales to factors or other third parties) and not as part of any financing transactions; (i) leases, subleases, service agreements, product sales, licenses or sublicenses, in each case that do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole; (j) non-exclusive licenses or sublicenses of Intellectual Property in the ordinary course of business; (k) transfers of property subject to Casualty Events; (l) so long as (x) no Event of Default shall have occurred and be continuing at the time that any Disposition is contractually committed and (y) no Event of Default under Section 7.01(a), (b), (h) or (i) has occurred and is continuing at the time such Disposition is consummated, Dispositions of property to Persons other than the Borrower or its Restricted Subsidiaries (including the sale or issuance of Equity Interests of a Restricted Subsidiary) for fair market value (as reasonably determined by a Responsible Officer of the Borrower in good faith) not otherwise permitted under this Section 6.05; provided that, with respect to any Disposition (or series of related Dispositions) pursuant to this clause (l) for a purchase price in excess of $5,000,000 individually and $10,000,000 in the aggregate per fiscal year, the Borrower or any Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that solely for the purposes of this clause (l), (A) any liabilities (as shown on the most recent balance sheet of the Borrower or such Restricted Subsidiary or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities, notes or other obligations or assets received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within one hundred and eighty (180) days following the closing of the applicable Disposition shall be deemed to be cash, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to the Borrower or its Restricted Subsidiaries), to the extent that the Borrower and all of the Restricted Subsidiaries (to the extent previously liable thereunder) are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such
Appears in 1 contract
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it or (including any disposition of property pursuant to a Division/Series Transaction)or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than (x) issuing directors’ qualifying shares, shares and nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than (y) issuing Equity Interests to the Borrower or a Restricted Subsidiary or in the case of a Restricted Subsidiary that is not a Subsidiary Loan Party, joint venture partners in compliance with Section 7.04(c6.04(c), as applicable) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
(a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as reasonably determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.07 and Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e);
(f) [reserved];
(g) Dispositions of Permitted Investments for cash;
(h) Dispositions or forgiveness of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof (including sales to factors or other third parties) and not as part of any financing transactions;
(i) leases, subleases, service agreements, product sales, licenses or sublicenses, in each case that do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(j) non-exclusive licenses or sublicenses of Intellectual Property in the ordinary course of business;
(k) transfers of property subject to Casualty Events;
(l) so long as (x) no Event of Default shall have occurred and be continuing at the time that any Disposition is contractually committed and (y) no Event of Default under Section 7.01(a), (b), (h) or (i) has occurred and is continuing at the time such Disposition is consummated, Dispositions of property to Persons other than the Borrower or its Restricted Subsidiaries (including the sale or issuance of Equity Interests of a Restricted Subsidiary) for fair market value (as reasonably determined by a Responsible Officer of the Borrower in good faith) not otherwise permitted under this Section 6.05; provided that, with respect to any Disposition (or series of related Dispositions) pursuant to this clause (l) for a purchase price in excess of $5,000,000 individually and $10,000,000 in the aggregate per fiscal year, the Borrower or any Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that solely for the purposes of this clause (l), (A) any liabilities (as shown on the most recent balance sheet of the Borrower or such Restricted Subsidiary or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities, notes or other obligations or assets received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within one hundred and eighty (180) days following the closing of the applicable Disposition shall be deemed to be cash, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to the Borrower or its Restricted Subsidiaries), to the extent that the Borrower and all of the Restricted Subsidiaries (to the extent previously liable thereunder) are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition, shall be deemed to be cash, (D) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate fair market value (as reasonably determined by a Responsible Officer of the Borrower in good faith), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (l) that is at that time outstanding, not in excess of the greater of $10,000,000 and 12% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value (as determined in good faith by the Borrower) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash, (E) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(c), and (F) no Dispositions of the Equity Interests of any Subsidiary Loan Party shall be permitted pursuant to this clause (l) unless all of the Equity Interests of such Subsidiary Loan Party are Disposed;
(m) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(A) Dispositions for fair market value (as determined in good faith by the Borrower) of any assets (including Equity Interests) acquired in connection with any Permitted Acquisition or other similar permitted Investment permitted hereunder, which assets are not used or useful to the core or principal business of the Borrower and its Restricted Subsidiaries and (B) Dispositions for fair market value (as determined in good faith by the Borrower) of any assets (including Equity Interests) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition or other similar permitted Investment; provided that the Net Proceeds of such Dispositions shall be applied and/or reinvested as (and to the extent) required by Section 2.11(c);
(o) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
Appears in 1 contract
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary of the Subsidiaries to, (i) voluntarily sell, transfer, lease or otherwise dispose (including pursuant to a merger) of any asset, including any Equity Interest owned by it or (ii) Interest, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning)Interest, except:
(a) Dispositions (i) sales, transfers, leases and other dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, and Dispositions of non-core assets or property, including assets or property, no longer used or useful, surplus equipment or economically practicable to maintainother obsolete or, in the conduct reasonable judgment of Borrower, unnecessary assets, (ii) the cross-licensing or licensing of intellectual property, (iii) the substantially contemporaneous exchange of property for property of a like kind (other than as set forth in clause (ii)), to the extent that the property received in such exchange is of a value equivalent to the value of the core or principal business property exchanged (provided, that after giving effect to such exchange, the value of the Borrower property subject to perfected first priority Liens in favor of the Administrative Agent under the Security Documents is not materially reduced), (iv) the sale, transfer or other disposition of property and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated);
(b) Dispositions of inventory and (v) the sale, transfer or other assets disposition of cash and Cash Equivalents, in the case of each of clauses (including Settlement Assetsi), (ii), (iv) and (v) of this Section 7.5(a), in the ordinary course of business of the Borrower and the Subsidiaries;
(b) sales, transfers, leases and other dispositions (i) made by the Borrower to any Subsidiary Guarantor, (ii) made by any Subsidiary to the Borrower or consistent any Subsidiary Guarantor and (iii) made by any Non-Guarantor Subsidiary to any other Non-Guarantor Subsidiary;
(c) Liens permitted by Section 7.2, Investments permitted by Section 7.4, sale and leaseback transactions permitted by Section 7.6 and Restricted Payments permitted by Section 7.8;
(d) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, cable television system asset exchanges for fair value, provided that the assets received are held by the Borrower or (x) to the extent the assets so exchanged were held by Borrower or a Subsidiary Guarantor, a Subsidiary Guarantor and (y) in any other case, a Wholly-Owned Subsidiary of Borrower;
(e) sales, transfers, leases and other dispositions permitted by Section 7.3;
(f) any casualty or insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Subsidiary; provided that the requirements of Section 2.7(b) are complied with past practice in connection therewith;
(g) the sale, transfer, lease and other disposition or held for abandonment of intellectual property that is, in the reasonable judgment of the Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Borrower and the Subsidiaries taken as a whole;
(h) the leasing, occupancy agreements or sub-leasing of property or licensing or sublicensing of intellectual property that would not materially interfere with the required use of such property or intellectual property by the Borrower or the Subsidiaries;
(i) the sale or no longer used discount, in the ordinary course of business each case without recourse and immaterial assets (considered in the aggregate) in the ordinary course of business, of overdue accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not part of any bulk sale or financing of receivables);
(cj) Dispositions dispositions of property Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) the sale, transfer, lease and other disposition of any Immaterial Subsidiary, provided, that the requirements of Section 2.7(b), to the extent applicable, are complied with in connection therewith;
(l) Dispositions made by the Borrower or any Subsidiary required, in the Borrower’s good faith judgment, to consummate the Exit Event permitted by Section 7.14; and
(m) one or more sales, transfers, leases or other dispositions of assets or sales or issuances of Equity Interests (each an “Asset Transfer”), provided that with respect to each such Asset Transfer pursuant to this Section 7.5(m), the following conditions have been satisfied:
(i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to no Default shall exist immediately before the Borrower or a Restricted Subsidiary; provided that if the transferor Subsidiary enters into a binding agreement in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, respect thereof;
(ii) the sum of (A) a fraction (expressed as a percentage), the numerator of which is the Consolidated Operating Cash Flow attributable to the extent constituting an Investmentproperty being sold, transferred, leased or otherwise disposed of in such Investment must be Asset Transfer (the “Subject Asset Transfer”), and the denominator of which is the Consolidated Operating Cash Flow, in each case for the four fiscal quarter period ended in respect of which the financial statements required by Section 6.1(a) or (b) have been delivered immediately preceding the date of such Subject Asset Transfer, plus (B) with respect to each other property sold, transferred, leased or otherwise disposed of in another Asset Transfer pursuant to this Section 7.5(m) prior to or simultaneously with the Subject Asset Transfer (each, a permitted Investment “Prior Asset Transfer”) during the one year period ending on the date of the Subject Asset Transfer, the sum of the percentages calculated with respect to each such Prior Asset Transfer under Section 7.5(m)(ii)(A) at the time of the Subject Asset Transfer, shall not exceed, in a Restricted Subsidiary that is not a Loan Party the case of these clauses (A) plus (B), 30% in accordance with Section 7.04 or the aggregate;
(iii) the sum of (A) the percentage calculated with respect to the extent constituting a Disposition Subject Asset Transfer pursuant to a Restricted Subsidiary that is Section 7.5(m)(ii)(A), plus (B) with respect to each Prior Asset Transfer during the period commencing on the Closing Date and ending on the date of the Subject Asset Transfer, the sum of the percentages calculated with respect to each such Prior Asset Transfer under Section 7.5(m)(ii)(A) at the time of each such Prior Asset Transfer, shall not a Loan Partyexceed, such Disposition is in the case of these clauses (A) plus (B), 50% in the aggregate;
(iv) each Asset Transfer permitted by this Section 7.5(m) shall be made for fair market value, and, subject to usual and customary escrow, hold-back or similar arrangements, not less than 75% of such value shall be payable in Cash Consideration substantially simultaneously with such Asset Transfer; and
(A) the Borrower will be in compliance with each of the Financial Covenants on a Pro Forma Basis after giving effect to such Asset Transfer, (B) the Administrative Agent and the Lenders shall have been given five Business Days’ prior written notice thereof, and (C) the Administrative Agent shall have received a certificate signed by a Financial Officer, identifying the subject properties, the name of the other party to the Asset Transfer, setting forth the total consideration to be paid in respect of such Asset Transfer, and certifying as determined to the matters set forth in good faith by the Borrowerclauses (A) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; (eB) Dispositions permitted by Section 7.03, Investments permitted by Section 7.04, Restricted Payments permitted by Section 7.07 and Liens permitted by Section 7.02;hereof.
Appears in 1 contract
Asset Sales. The Borrower Holdings will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower Holdings or a any Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
: (a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower Holdings and its any Restricted Subsidiaries Subsidiary (including by ceasing to enforce, abandoning, allowing any registration to lapse, terminate or application for registration be invalidated, discontinuing the use or maintenance of or putting into the public domain, any Intellectual Property that is is, in the reasonable judgment of Holdings or the Restricted Subsidiaries, no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidatedin respect of which the Holdings or any Restricted Subsidiary determines in its reasonable business judgment that such action or inaction is desirable);
; (b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
; (c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
; (d) Dispositions of property to the Borrower Holdings or a any Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (iii) such Disposition is for Fair Market Value (as determined in good faith by the Borrower) and to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.046.04; (e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.07 and Liens permitted by Section 7.02;6.02; (f) Dispositions of property acquired by Holdings or any of the Restricted Subsidiaries after the Effective Date pursuant to sale-leaseback transactions permitted pursuant to Section 6.06; (g) Dispositions of Permitted Investments; (h) Dispositions or forgiveness of accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties); (i) leases, subleases, service agreements, product sales, licenses or sublicenses (including licenses and sublicenses of Intellectual Property), in each case that do not materially interfere with the business of Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole; (j) transfers of property subject to Casualty Events; (k) Dispositions of property to Persons other than Restricted Subsidiaries (including the sale or issuance of Equity Interests of a Restricted Subsidiary) for Fair Market Value (as determined by a in -118- good faith by the board of directors of the Borrower) not otherwise permitted under this Section 6.05; provided that with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of $30,000,000, Holdings, the Borrower or such Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that solely for the purposes of this clause (k), (A) any liabilities (as shown on the most recent balance sheet of Holdings or such Restricted Subsidiary or in the footnotes thereto) of Holdings or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the First Lien Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which Holdings and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities, notes or other obligations or assets received by Holdings, the Borrower or such Restricted Subsidiary from such transferee that are converted by Holdings or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within one hundred and eighty (180) days following the closing of the applicable Disposition, shall be deemed to be cash, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to t Holdings or its Restricted Subsidiaries), to the extent that Holdings and all of the Restricted Subsidiaries (to the extent previously liable thereunder) are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition, shall be deemed to be cash, (D) any Designated Non-Cash Consideration received by Holdings or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value (as determined by a Responsible Officer of the Borrower in good faith), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess of the greater of (A) $35,200,000 and (B) 20% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-Cash Consideration, with the Fair Market Value (as determined by a Responsible Officer of the Borrower in good faith) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash and (E) at the time of and immediately after giving effect to such Disposition, no Default or Event of Default shall have occurred and be continuing; (l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (m) [reserved]; (n) additional Dispositions; provided that at the time any such Dispositions is made, the aggregate outstanding amount of such Dispositions made in reliance on this clause (n), together with the aggregate amount of all consideration paid in connection with all other Dispositions made in reliance on this clause (n), shall not exceed the sum of the greater of (A) $35,200,000 and (B) 20% of Consolidated EBITDA for the most recently ended Test Period after giving Pro Forma Effect to the making of such Dispositions; provided that such Disposition is for Fair Market Value (as determined in good faith by the Borrower) ; (o) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment not prohibited hereunder, which assets are not used or useful to the core or principal business of Holdings and the Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition; (p) (i) any Disposition of accounts receivable, Securitization Assets, any participations thereof, or related assets in connection with or any Qualified Securitization Facility, (ii) the sale or discount of inventory, accounts receivable or notes receivable in the ordinary course of business (including sales to factors or other third parties) or in connection with any supplier and/or customer financing or (iii) the conversion of accounts receivable to notes receivable; (q) transfers of condemned real property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same -119-
Appears in 1 contract
Sources: Credit Agreement (LivaNova PLC)
Asset Sales. (i) The Borrower will not, and nor will not it permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest and any Intellectual Property owned by it or it, and (ii) the Borrower will not permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than (A) issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than Law, (B) issuing Equity Interests to the Borrower or a any Restricted Subsidiary in compliance with Section 7.04(c6.04(c), (C) any non-wholly-owned Restricted Subsidiary issuing Equity Interests of such Subsidiary to each owner of Equity Interests of such Subsidiary ratably based on their relative ownership interests) and (D) issuing securities pursuant to a management equity plan, stock option plan, phantom equity plan or any other management, employee benefit or other compensatory plan or agreement (and any successor plans or arrangements thereto)), in each case, having a fair market value (x) in excess of $500,000 in a single transaction or a series of related transactions or (y) in excess of $2,500,000 in any fiscal year (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its the Restricted Subsidiaries (including (i) allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidatedinvalidated or (ii) disposing of, discontinuing the use or maintenance of, abandoning, failing to pursue or otherwise allowing to lapse, expire, terminate or put into the public domain any of its Intellectual Property if the Borrower determines in its reasonable business judgment that such discontinuance is desirable in the conduct of its business);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of businessincluding on an intercompany basis);
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property property, or other assets of comparable or greater value or usefulness to the business or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a any Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 and Section 6.16 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party permitted by Section 6.04 and Section 6.16; provided that the aggregate amount of such Dispositions made by Loan Parties after the Effective Date in accordance Restricted Subsidiaries that are not Loan Parties in reliance on this clause (d), together with the aggregate amount of (x) all other Investments made in and Dispositions made to Restricted Subsidiaries that are not Loan Parties by Loan Parties after the Effective Date and (y) all Investments and Dispositions made in reliance on Section 7.04; 6.16(ii), shall not exceed $7,500,000;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.08 and Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e);
(f) Dispositions of cash and/or Permitted Investments and/or other assets that were Permitted Investments when the relevant original Investment was made;
(g) the sale or discount, in each case without recourse, of past due accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not for financing purposes;
(h) leases, subleases, licenses or sublicenses, in each case in the ordinary course of business and that do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(i) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(j) Dispositions of property to Persons other than the Borrower or any Restricted Subsidiary (including the sale or issuance of Equity Interests in a Restricted Subsidiary) not otherwise permitted under this Section 6.05 in an aggregate amount during the term of this Agreement not to exceed $40,000,000; provided, that (i) such Disposition is made for Fair Market Value and (ii) the Borrower or any Restricted Subsidiary shall receive not less than 75.0% of such consideration in the form of cash or Permitted Investments (provided, that for purposes of this clause (ii), the following shall be deemed to be cash or Permitted Investments: (1) any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto for which internal financial statements are available immediately preceding such date or, if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet in the good faith determination of the Borrower) of the Borrower or any of its Restricted Subsidiaries (other than liabilities that are by their terms subordinated to the Secured Obligations) that are extinguished in connection with the transactions relating to such Disposition, or that are assumed by the transferee, in each case, pursuant to an agreement that releases or indemnifies the Borrower and/or its applicable Restricted Subsidiaries, as the case may be, from further liability and (2) any notes or other obligations or other securities or assets received by the Borrower or any of its Restricted Subsidiaries from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Permitted Investments (to the extent of the cash or Permitted Investments received), in each case, within 60 days of the receipt thereof); provided, further, that the Net Proceeds thereof shall be applied in accordance with Section 2.11(d);
(k) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in, joint venture agreements and similar binding arrangements;
(l) [reserved];
(m) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(n) [reserved];
(o) [reserved];
(p) [reserved]; and
(q) any merger, amalgamation, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or, subject to the consent of the Required Lenders (such consent not to be unreasonably withheld, conditioned or delayed; provided, that it is acknowledged and agreed that it shall not be unreasonable to withhold consent to any such transaction that will have a material adverse impact on the Guarantees or the Collateral), any other jurisdiction. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.05 to any Person other than a Loan Party, subject to the proviso set forth in clause (a) of the definition of Excluded Subsidiary with respect to any Disposition of less than 100% of the Equity Interests of a wholly-owned subsidiary, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent, acting at the direction of the Required Lenders, shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing, and shall be entitled to rely, without independent investigation on a certificate of Responsible Officer of the Borrower in connection with the foregoing (which shall be delivered to the Administrative Agent upon request therefor).
Appears in 1 contract
Sources: Credit Agreement (Invacare Corp)
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, (i) voluntarily sell, transfer, lease or otherwise dispose (including pursuant to a division) of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
(a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property or Badcock Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, be dedicated to the public domain or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (ii)(i) the transferee must be a Loan PartyParty (other than, prior to Payment in Full of Badcock Obligations, Badcock), (ii) to the extent constituting an Investment, such Investment must be a permitted Permitted Investment in a Restricted Subsidiary that is not a Loan Party or, prior to Payment in Full of Badcock Obligations, Badcock, in each case, in accordance with Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, or, prior to Payment in Full of Badcock Obligations, Badcock, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party or, prior to Payment in Full of Badcock Obligations, Badcock, in each case, in accordance with Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.03, 6.03 and Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.07 and Liens permitted by Section 7.026.02;
(f) Dispositions of property pursuant to sale and leaseback transactions permitted by Section 6.06 hereto;
(g) Dispositions of Permitted Investments;
(h) Dispositions of accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties);
(i) leases, subleases, service agreements, product sales, abandonments, licenses, sublicenses or other disposals (including of Intellectual Property and Badcock Intellectual Property), in each case, (A) granted in the ordinary course of business or (B) that do not materially interfere with the business of the Borrower and its Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events;
(k) Dispositions of property to Persons other than Subsidiaries (including the sale or issuance of Equity Interests of a Subsidiary and including the sale of real property) for fair market value (as determined by a Responsible Officer of the Lead Borrower in good faith) not otherwise permitted under this Section 6.05; provided that with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of (x) with respect to any single transaction or series of related transactions, $11,500,000 or (y) with respect to all other Dispositions in any fiscal year of the Lead Borrower not excluded from the requirements of this proviso pursuant to the immediately preceding subclause (x), $23,000,000, the Borrower or any Subsidiary shall receive not less than 75% of such consideration in excess of the amounts referred to subclauses (x) and (y) in the form of cash or Permitted Investments; provided, however, that solely for the purposes of this clause (k), (A) any liabilities (as shown on the most recent balance sheet of the Borrower or such Subsidiary or in the footnotes thereto) of the Borrower or such Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities, notes or other obligations or assets received by the Borrower or such Subsidiary from such transferee that are converted by the Borrower or such Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within one hundred and eighty (180) days following the closing of the applicable Disposition, shall be deemed to be cash, (C) Indebtedness of any Subsidiary that ceases to be a Subsidiary as a result of such Disposition (other than intercompany debt owed to the Borrower or its Subsidiaries), to the extent that the Borrower and all of the Subsidiaries (to the extent previously liable thereunder) are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition, shall be deemed to be cash and (D) any Designated Non-Cash Consideration received by the Borrower or such Subsidiary in respect of such Disposition having an aggregate fair market value (as determined by a Responsible Officer of the Lead Borrower in good faith), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess of $28,750,000, with the fair market value (as determined in good faith by the Lead Borrower) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash; provided, further, that, other than in respect of the Disposition described on Schedule 6.05(k), no Event of Default shall have occurred and be continuing at the time of, and after giving effect to, any Disposition made pursuant to this clause (k);
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions or forgiveness of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof;
(n) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment not prohibited hereunder, which assets are not used or useful to the core or principal business of the Borrower and its Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(o) Dispositions of assets that are not Collateral or Badcock Collateral in an aggregate amount not to exceed the greater of $9,200,000 and 2.875% of Consolidated EBITDA for the most recently ended Test Period in any fiscal year of the Lead Borrower;
(p) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(q) any Disposition of the Equity Interests of any Immaterial Subsidiary;
(r) other Dispositions in an aggregate amount not to exceed the greater of $9,200,000 and 2.875% of Consolidated EBITDA for the most recently ended Test Period in any fiscal year of the Lead Borrower;
(s) the sale by the Liberty Parties of Liberty Area Development Rights, Liberty Franchise Rights, and store locations (and customer lists and other assets related thereto), in each case in the ordinary course of business and consistent with past practice; provided further that no Event of Default under paragraph (a), (b), (d) (solely as a result of an Event of Default due to failure to comply with a Financial Maintenance Covenant, subject to the cure rights set forth in Section 7.02 and solely after the expiration of the applicable Cure Expiration Date), (h) or (i) of Section 7.01 shall have occurred and be continuing at the time of, and after giving effect to, any Disposition made pursuant to this clause (s); and
Appears in 1 contract
Sources: Second Lien Credit Agreement (Franchise Group, Inc.)
Asset Sales. The Each of the Company and the Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (including, in each case, pursuant to an Entity Division) (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and consistent with past practices and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower Company, the Borrower, and its Restricted their Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, abandoned or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of businessconsistent with past practices;
(c) Dispositions of property (other than any Theater Assets) to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or property, (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement propertyproperty or (iii) such Disposition is allowable under Section 1031 of the Code, or any comparable or successor provision is for like property (and any boot thereon) and for use in a Similar Business;
(d) Dispositions of property to the Borrower Company, the Borrower, or a Restricted SubsidiarySubsidiary (including as a result of an Entity Division); provided that if the transferor in of such a transaction property is a the Company, the Borrower or any Subsidiary Loan Party, then either (i) the transferee thereof must be a the Borrower or any Subsidiary Loan Party, Party or (ii) to the extent constituting an Investment, such Investment Disposition must be a permitted an Investment in a Restricted Subsidiary that is not a Subsidiary Loan Party in accordance with permitted by Section 7.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.08, and Liens L▇▇▇▇ permitted by Section 7.026.02, in each case, other than by reference to Section 6.05;
(f) Dispositions in connection with the Transactions;
(g) Dispositions of Permitted Investments;
(h) Dispositions of accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties), in each case, in the ordinary course of business and consistent with past practices and not for any transaction or series of transactions which is for the purpose of materially reducing the value of the Collateral or disadvantaging the Lenders in respect of their rights as creditors relative to other creditors;
(i) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and consistent with past practices and that do not materially interfere with the business of the Company, the Borrower, and their Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(k) Dispositions of property to Persons other than the Company, the Borrower, any Subsidiary or any Affiliate thereof (including the sale or issuance of Equity Interests in a Subsidiary) not otherwise permitted under this Section 6.05; provided that
(i) such Disposition is made for Fair Market Value and
(ii) except in the case of a Permitted Asset Swap, with respect to any Disposition pursuant to Section 6.05(k) for a purchase price in excess of $350,000, the Company, the Borrower, or a Subsidiary shall receive not less than 100% of such consideration in the form of cash; provided, however, that for the purposes of this clause (k)(ii), any securities received by the Borrower or such Subsidiary from such transferee that are converted by the Borrower or such Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of the Company, the Borrower, and their Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority or otherwise required by a Governmental Authority in connection with a Permitted Acquisition;
(n) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(o) Dispositions of property for Fair Market Value not otherwise permitted under this Section 6.05 having an aggregate purchase price not to exceed $2,000,000;
(p) [reserved];
(q) the unwinding of any Swap Obligations or Cash Management Obligations; and
(r) Dispositions for the purpose of funding (to the extent required) special purpose vehicles or trusts assuming the obligations to fulfill pension obligations of any member of any parent company, Borrower and/or any of its Subsidiaries (commonly referred to as “contractual trust arrangements” or “CTA”), including without limitation pursuant to sections 7(b) through 7(f) of the Fourth Book of the German Social Security Code (Sozialgesetzbuch (IV)) or section 8(a) of the German Partial Retirement Act (Altersteilzeitgesetz). In addition, no member of the Odeon Group may make any Disposition to any Affiliate of AMC (other than AMC and its Subsidiaries as permitted under this Agreement).
Appears in 1 contract
Sources: Senior Secured Term Loan Credit Agreement (Amc Entertainment Holdings, Inc.)
Asset Sales. (i) The Borrower Company will not, and nor will not it permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest and any Intellectual Property owned by it or and (ii) Invacare Corporation will not permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary following the Issue Date (other than (A) issuing directors’ #96856656v2 qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than Law, (B) issuing Equity Interests to the Borrower or a any Restricted Subsidiary in compliance with Section 7.04(c4.13(c), (C) any non-wholly-owned Restricted Subsidiary issuing Equity Interests of such Subsidiary to each owner of Equity Interests of such Subsidiary ratably based on their relative ownership interests, (D) issuing securities pursuant to a management equity plan, stock option plan, phantom equity plan or any other management, employee benefit or other compensatory plan or agreement (and any successor plans or arrangements thereto), (E) Invacare Corporation and New International Holdings issuing Equity Interests (other than Disqualified Equity Interests) and (F) the issuance of Convertible Preferred Stock, in each case, having a fair market value (x) in excess of $500,000, in a single transaction or a series of related transactions or (y) in excess of $2,500,000 in any fiscal year (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of Invacare Corporation and the Borrower and its Restricted Subsidiaries (including (i) allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property invalidated or (ii) an amount equal disposing of, discontinuing the use or maintenance of, abandoning, failing to Net Proceeds pursue or otherwise allowing to lapse, expire, terminate or put into the public domain any of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that its Intellectual Property if the transferor Company determines in its reasonable business judgment that such a transaction discontinuance is a Loan Party, then either (i) desirable in the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; (e) Dispositions permitted by Section 7.03, Investments permitted by Section 7.04, Restricted Payments permitted by Section 7.07 and Liens permitted by Section 7.02conduct of its business);
Appears in 1 contract
Sources: Indenture (INVACARE HOLDINGS Corp)
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose (including pursuant to a division) of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the AMERICAS 123601947 167 extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
(a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.03, 6.03 and Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.07 and Liens permitted by Section 7.026.02;
(f) Dispositions of property pursuant to sale and leaseback transactions permitted by Section 6.06 hereto;
(g) Dispositions of Permitted Investments;
(h) Dispositions of accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties);
(i) leases, subleases, service agreements, product sales, abandonments, licenses, sublicenses or other disposals (including of Intellectual Property), in each case that do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events;
(k) Dispositions of property to Persons other than Restricted Subsidiaries (including the sale or issuance of Equity Interests of a Restricted Subsidiary) for fair market value (as determined by a Responsible Officer of the Borrower in good faith) not otherwise permitted under this Section 6.05; provided that with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of (x) with respect to any single transaction or series of related transactions, the greater of $12,500,000 and 10.0% of the Consolidated EBITDA as of the most recently ended Test Period, or (y) with respect to all other Dispositions in any fiscal year not excluded from the requirements of this proviso pursuant to the AMERICAS 123601947 168 immediately preceding subclause (x), the greater of $25,000,000 and 20.0% of the Consolidated EBITDA as of the most recently ended Test Period, the Borrower or any Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that solely for the purposes of this clause (k), (A) any liabilities (as shown on the most recent balance sheet of the Borrower or such Restricted Subsidiary or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities, notes or other obligations or assets received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within one hundred and eighty (180) days following the closing of the applicable Disposition, shall be deemed to be cash, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to the Borrower or its Restricted Subsidiaries), to the extent that the Borrower and all of the Restricted Subsidiaries (to the extent previously liable thereunder) are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition, shall be deemed to be cash and (D) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate fair market value (as determined by a Responsible Officer of the Borrower in good faith), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess of the greater of $40,000,000 and 33.0% of Consolidated EBITDA at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value (as determined in good faith by the Borrower) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions or forgiveness of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof;
(n) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment not prohibited hereunder, which assets are not used or useful to the core or principal business of the Borrower and its Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(o) Dispositions of assets that are not Collateral in an aggregate amount not to exceed the greater of $20,000,000 and 17.0% of Consolidated EBITDA for the most recently ended Test Period in any calendar year (which amount, if not used in any calendar year, may be carried forward to the immediately succeeding calendar year (but to no other calendar year));
(p) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(q) any Disposition of the Equity Interests of any Immaterial Subsidiary or Unrestricted Subsidiary; and AMERICAS 123601947 169
(r) other Dispositions in an aggregate amount not to exceed the greater of $40,000,000 and 33.0% of Consolidated EBITDA for the most recently ended Test Period. Notwithstanding anything to the contrary contained in this Section 6.05, no Loan Party shall, directly or indirectly, sell or otherwise transfer (except for non-exclusive leases or non-exclusive licenses with respect thereto) any Material Intellectual Property as of the Effective Date to any non-Loan Party.
Appears in 1 contract
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) ), whether effected pursuant to a Division or otherwise (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
(a1) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, and Dispositions of non-core assets or property, (including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted Subsidiaries Subsidiaries) (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated);
(b2) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c3) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d4) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; 6.04;
(e5) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.07 and Liens permitted by Section 7.026.02;
(6) Dispositions of property acquired by the Borrower or any of the Restricted Subsidiaries pursuant to sale-leaseback transactions;
(7) Dispositions of Permitted Investments;
(8) Dispositions or forgiveness of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof (including sales to factors or other third parties);
(9) leases, subleases, service agreements, product sales, licenses or sublicenses (including licenses and sublicenses of Intellectual Property), in each case that do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(10) transfers of property subject to Casualty Events;
(11) Dispositions of property to Persons other than Restricted Subsidiaries (including the sale or issuance of Equity Interests of a Restricted Subsidiary) for fair market value (as determined by a Responsible Officer of the Borrower in good faith) not otherwise permitted under this Section 6.05; provided that with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of $50,000,000, the Borrower or any Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that solely for the purposes of this clause (k), (A) any liabilities (as shown on the most recent balance sheet of the Borrower or such Restricted Subsidiary or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities, notes or other obligations or assets received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within one hundred and eighty (180) days following the closing of the applicable Disposition, shall be deemed to be cash, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to the Borrower or its Restricted Subsidiaries), to the extent that the Borrower and all of the Restricted Subsidiaries (to the extent previously liable thereunder) are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition, shall be deemed to be cash and (D) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate fair market value (as determined by a Responsible Officer of the Borrower in good faith), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess of $50,000,000 at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value (as determined in good faith by the Borrower) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(12) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(13) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment not prohibited hereunder, which assets are not used or useful to the core or principal business of the Borrower and its Restricted Subsidiaries and/or (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(14) any Disposition of accounts receivable, Securitization Assets, any participations thereof, or related assets in connection with or any Qualified Securitization Facility;
(15) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from -133- foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement; and
(16) Unrestricted Subsidiary. any Disposition of the Equity Interests of any Immaterial Subsidiary or
Appears in 1 contract
Sources: Term Loan Credit Agreement (Installed Building Products, Inc.)
Asset Sales. The Neither Holdings nor the Borrower will, nor will not, and will not they permit any Restricted Subsidiary or Intermediate Parent, to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest owned by it (including, in each case, any disposition of property to a Delaware Divided LLC pursuant to a Delaware LLC Division) or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals or other Persons to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Holdings, the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of Holdings, any Intermediate Parent, the Borrower and its the Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is either no longer used or useful, or no longer economically practicable to maintain, to lapse, go abandoned, or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04(c) or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04(c);
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 and 6.08, Liens permitted by Section 7.026.02 and issuances of Equity Interests permitted by Sections 6.09(iv) and 6.09(xi), in each case, other than by reference to this Section 6.05(e);
(f) Dispositions of Permitted Investments;
(g) Dispositions of accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties);
(h) leases, subleases, licenses or sublicenses (including solely non-exclusive licenses or sublicenses of intellectual property or software, including the provision of software under an open source license), in each case that do not materially impair the business of Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole;
(i) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(j) Dispositions of property to Persons other than Restricted Subsidiaries (including (x) the sale or issuance of Equity Interests in a Restricted Subsidiary and (y) any Sale Leaseback) not otherwise permitted under this Section 6.05 (A) in an amount not to exceed $2,500,000, plus (B) additional amounts subject to the following: (i) such Disposition is made for Fair Market Value and (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $2,500,000 for any transaction or series of related transactions, the Borrower or a Restricted Subsidiary shall receive not less than 75.0% of such consideration in the form of cash or Permitted Investments; provided, however, that for the purposes of this clause (ii), (x) any liabilities (as shown on the most recent balance sheet of Holdings provided hereunder or in the footnotes thereto) of Holdings, the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which Holdings, any Intermediate Parent, the Borrower and the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (y) any securities received by Holdings, any Intermediate Parent, the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (z) any Designated Non-Cash Consideration received by Holdings, any Intermediate Parent, the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (j) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of 3% of Consolidated Total Assets for the most recently ended Test Period, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(k) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(l) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of any Intermediate Parent, the Borrower and the Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(m) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(n) Holdings and its Subsidiaries may undertake or consummate any IPO Reorganization Transactions or any transaction related thereto or contemplated thereby;
(o) Dispositions of Franchises in the ordinary course of business; and
(p) Dispositions of any European Wax Center location and related assets owned by the Borrower or any Restricted Subsidiary (and whether through the sale of capital of any person owning such assets) to any Franchisee, or Persons who become Franchisees as a result of such transaction, so long as no Event of Default shall exist or result therefrom. Notwithstanding the foregoing of this Section 6.05 or of Section 6.04 or 6.08, unless the Collateral Agent shall be granted a license of such Material Intellectual Property pursuant to and in accordance with Section 4.03 of the Collateral Agreement, the Borrower and its Subsidiaries shall not, without the consent of the Administrative Agent, Dispose of any Material Intellectual Property (including, without limitation, by way of Investment or dividend or other distribution) to any person other than a Loan Party other than (i) licenses or sublicenses of Material Intellectual Property in the ordinary course of business (including, without limitation, to Franchisees) and (ii) Dispositions of Material Intellectual Property that is either no longer used or useful, or no longer economically practicable to maintain, in each case, as determined by the Borrower in its reasonable business judgment.
Appears in 1 contract
Asset Sales. The (a) Neither AT Finance Holdings nor the Borrower will, nor will not, and will not they permit any Restricted Subsidiary Subsidiary, to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to AT Finance Holdings, the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(ab) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of AT Finance Holdings, the Borrower and its the Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, or be invalidated);
(bc) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(cd) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(de) Dispositions of property to AT Finance Holdings, the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04;
(ef) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.08 and Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(f);
(g) Dispositions of Permitted Investments;
(h) Dispositions of (A) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) and (B) receivables and related assets pursuant to any Permitted Receivables Financing;
(i) leases, subleases, licenses or sublicenses, in each case in the ordinary course of business and that do not materially interfere with the business of AT Finance Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(k) Dispositions of property to Persons other than AT Finance Holdings, the Borrower or any of the Restricted Subsidiaries (including (x) the sale or issuance of Equity Interests in a Restricted Subsidiary and (y) any Sale Leaseback) not otherwise permitted under this Section 6.05; provided that (i) such Disposition is made for Fair Market Value and (ii) with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of $50,000,000 for any transaction or series of related transactions, the Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that (1) for the purposes of this clause (ii), (A) any liabilities (as shown on the most recent balance sheet of AT Finance Holdings provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which AT Finance Holdings, the Borrower and the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities received by AT Finance Holdings, the Borrower or such Restricted Subsidiary from such transferee that are converted by AT Finance Holdings, the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by AT Finance Holdings, the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of 1.0% of Consolidated Total Assets for the most recently ended Test Period, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash and (2) the requirement that not less than 75% of consideration be received in the form of cash or Permitted Investments shall not apply to a Disposition of Property designated by the Borrower, promptly after consummation of such disposition, in a certificate of a Responsible Officer delivered to the Administrative Agent, as the “Permitted Non-Cash Disposition”; provided that there shall be not more than one Permitted Non-Cash Disposition and the Fair Market Value of such Disposition shall in no event exceed $300,000,000;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of AT Finance Holdings, the Borrower and the Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(n) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(o) Dispositions of property for Fair Market Value not otherwise permitted under this Section 6.05 having an aggregate purchase price not to exceed $150,000,000; and
(p) the sale or discount (with or without recourse) (including by way of assignment or participation) of receivables (including, without limitation, trade and lease receivables) and related assets in connection with a Permitted Receivables Financing.
Appears in 1 contract
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest Interests owned by it or (ii) it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest Interests in such Restricted Subsidiary (other than (i) any Restricted Subsidiary issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than (ii) any Restricted Subsidiary issuing Equity Interests to the Borrower or a another Restricted Subsidiary in compliance with Section 7.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaningor ratably to its holders of its Equity Interests), except:
(a) Dispositions sales, transfers, leases and other dispositions of (i) inventory, goods or services or immaterial assets in the ordinary course of business, (ii) obsolete, damagedworn-out, useduneconomic, damaged or surplus property or worn out property, whether now owned or hereafter acquired, and Dispositions of non-core assets or property, including assets or property, no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property property that is no longer economically practical or commercially desirable to maintain or used or usefuluseful in its business, whether now or economically practicable to maintainhereafter owned or leased or acquired in connection with an Acquisition, to lapse(iii) cash, go abandoned, or be invalidated);
(b) Dispositions of inventory Cash Equivalents and other assets investment securities in the ordinary course of business, (including Settlement Assetsiv) accounts in the ordinary course of business for purposes of collection, and (v) assets to the extent that the aggregate value of such assets sold in any single transaction or consistent with past practice related series of transactions is equal to $6,500,000 or held for sale less and the aggregate value of such assets sold during any fiscal year of Holdco is equal to $13,000,000 or no longer used in less;
(b) sales, transfers, leases and other dispositions to the ordinary course Borrower or any Subsidiary (including by contribution, disposition, dividend or otherwise); provided that if the transferor of business and immaterial assets such property is a Loan Party, then (considered in x) the aggregatetransferee thereof must be a Loan Party or (y) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition (1) is in the ordinary course of business;
, (c2) Dispositions of property to the extent for fair value and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 6.04 (iother than Section 6.04(1) such property is exchanged for credit against the purchase price of similar replacement property and (aa)), or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii3) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 (other than Section 6.04(1) and (aa));
(c) sales, transfers and other dispositions of accounts receivable (including write-offs, discounts and compromises) in connection with the compromise, settlement or collection thereof;
(iiid) sales, transfers, leases and other dispositions of property to the extent constituting that such property constitutes an Investment permitted by Section 6.04 (other than Section 6.04(1) and (aa)) hereunder or another asset received as consideration for the disposition of any asset permitted by this Section (in each case, other than Equity Interests in a Disposition Restricted Subsidiary, unless all Equity Interests in such Restricted Subsidiary are sold);
(e) leases or licenses or subleases or sublicenses entered into in the ordinary course of business, to the extent that they do not materially interfere with the business of Holdco and the Restricted Subsidiaries taken as a whole;
(f) conveyances, sales, transfers, licenses, including, for the avoidance of doubt, any licensing of curriculums, or sublicenses or other dispositions of Software or other rights in Intellectual Property in the ordinary course of business or pursuant to a research or development agreement in which the counterparty to such agreement receives a license to Software or other Intellectual Property that result from such agreement;
(g) dispositions resulting from any casualty or insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary;
(h) the abandonment, lapse, expiration or other disposition of Intellectual Property, whether now or hereafter owned or leased or acquired in connection with an Acquisition or other permitted Investment that is, in the reasonable good faith judgment of the Borrower, no longer economically practicable or commercially desirable to maintain or used or useful in the business of the Borrower and the Restricted Subsidiaries;
(i) [Reserved];
(j) dispositions from and after the Closing Date of non-core or obsolete assets acquired in connection with any Acquisition or other permitted Investments;
(k) sales, transfers and other dispositions by the Borrower or any Restricted Subsidiary that is not a Loan Party, of assets since the Closing Date so long as (A) such Disposition disposition is for fair market value (as determined in good faith by the Borrower or such Restricted Subsidiary), (B) if at the time of execution of a binding agreement in respect of such sale, transfer or other disposition, no Event of Default has occurred and is continuing or would result therefrom, (C) at least 75% of the consideration (other than (A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Borrower or any of its Restricted Subsidiaries and the valid release of the Borrower or such Restricted Subsidiary, by all applicable creditors in writing, from all liability on such Indebtedness or other liability in connection with such Disposition, (B) securities, notes or other obligations received by the Borrower or any of its Restricted Subsidiaries from the transferee that are converted by the Borrower or any of its Restricted Subsidiaries into cash or Cash Equivalents within 180 days following the closing of such Disposition, (C) [Reserved], (D) consideration consisting of Indebtedness of the Borrower (other than Subordinated Indebtedness) received after the Closing Date from Persons who are not the Borrower or any Restricted Subsidiary and (E) in connection with an asset swap, all of which shall be deemed “cash”) received is cash or Cash Equivalents or Designated Non-Cash Consideration to the extent that all Designated Non-Cash Consideration at such time does not exceed the greater of (x) $47,000,000 and (y) 32% of Consolidated EBITDA for the most recently ended four fiscal quarter period for which financial statements are available (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and all of the consideration received is at least equal to the fair market value of the assets sold, transferred or otherwise disposed of and (D) the Net Proceeds thereof shall be subject to Section 2.11(c);
(l) sales, transfers and other dispositions permitted by Section 6.03 (other than Section 6.03(a)(vii) or (b)(viii));
(m) the sale or exchange of specific items of property, so long as the purpose of each such sale or exchange is to acquire (and results within 365 days of such sale or exchange in the acquisition of) replacement items of property that are the functional equivalent of the item of property so sold or exchanged;
(n) the incurrence of Liens permitted hereunder;
(o) [reserved];
(p) sales, transfers and other dispositions made in order to effect the Transactions;
(q) sales or dispositions of Equity Interests of any Subsidiary (other than the Borrower) in order to qualify members of the Governing Body of such Subsidiary if required by applicable law;
(r) samples, including time-limited evaluation software, provided to customers or prospective customers;
(s) de minimis amounts of equipment provided to employees;
(t) sales, transfers and other dispositions of any promissory note Equity Interests in Unrestricted Subsidiaries or their assets;
(u) Restricted Payments made pursuant to Section 6.08;
(v) Permitted Sale Leasebacks in an aggregate principal amount not to exceed the greater of $30,000,000 and 20% of Consolidated EBITDA;
(w) the unwinding of any Cash Management Agreement or Swap Agreement pursuant to its terms;
(x) sales, transfers or other non-cash consideration received dispositions of Investments in respect thereof is a permitted investment in a Restricted Joint Ventures or any Subsidiary that is not a Loan Party wholly owned Restricted Subsidiary to the extent required by, or made pursuant to customary buy/sell arrangements between, the parties set forth in accordance Joint Venture arrangements and similar binding agreements;
(y) the Borrower and any Restricted Subsidiary may (i) terminate or otherwise collapse its cost sharing agreements with Section 7.04the Borrower or any Subsidiary and settle any crossing payments in connection therewith, (ii) convert any intercompany Indebtedness to Equity Interests, (iii) transfer any intercompany Indebtedness to the Borrower or any Restricted Subsidiary, (iv) settle, discount, write off, forgive or cancel any intercompany Indebtedness or other obligation owing by the Borrower or any Restricted Subsidiary, (v) settle, discount, write off, forgive or cancel any Indebtedness owing by any present or former consultants, directors, officers or employees of any Parent Entity, Holdco, the Borrower or any Subsidiary or any of their successors or assigns or (vi) surrender or waive contractual rights and settle or waive contractual or litigation claims;
(z) any Disposition of Securitization Assets or Receivables Assets, or participations therein, in connection with any Qualified Securitization Financing or Receivables Facility, or the Disposition of an account receivable in connection with the collection or compromise thereof in the ordinary course of business or consistent with past practice;
(aa) [Reserved];
(bb) other Dispositions (including those of the type otherwise described herein) made after the Closing Date in an aggregate amount not to exceed the greater of (x) $6,500,000 and (y) the Consolidated EBITDA generated by or attributable to all such property Disposed of shall not exceed 4% of Consolidated EBITDA for the most recently ended four fiscal quarter period for which financial statements are available; and
(ecc) Dispositions permitted any swap of assets in exchange for services or other assets in the ordinary course of business of comparable or greater fair market value of usefulness to the business of Holdco and its Restricted Subsidiaries as a whole, as determined in good faith by Section 7.03, Investments permitted by Section 7.04, Restricted Payments permitted by Section 7.07 and Liens permitted by Section 7.02;the Borrower.
Appears in 1 contract
Asset Sales. The (a) Neither Holdings, the Company nor any Borrower will, nor will not, and will not they permit any Restricted Subsidiary or Intermediate Parent, to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Holdings, the Company, a Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(ab) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of Holdings, any Intermediate Parent, the Borrower Company, the Borrowers and its the Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, abandoned or be invalidated);
(bc) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(cd) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or property, (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement propertyproperty or (iii) such Disposition is allowable under Section 1031 of the Code, or any comparable or successor provision is for like property (and any boot thereon) and for use in a Similar Business;
(de) Dispositions of property to the Company, a Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04;
(ef) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 and 6.08, Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(f);
(g) any issuance, sale or pledge of Equity Interests in, or Indebtedness, or other securities of, an Unrestricted Subsidiary (other than VMware);
(h) Dispositions of Permitted Investments;
(i) Dispositions of (A) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) and (B) receivables, DFS Financing Assets and related assets pursuant to any Permitted Receivables Financing;
(j) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and that do not materially interfere with the business of Holdings, the Company, the Borrowers and the Restricted Subsidiaries, taken as a whole;
(k) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(l) Dispositions of property to Persons other than Holdings, the Company, any Borrower or any of the Restricted Subsidiaries (including (x) the sale or issuance of Equity Interests in a Restricted Subsidiary and (y) any Sale Leaseback) not otherwise permitted under this Section 6.05; provided that (i) such Disposition is made for Fair Market Value and (ii) except in the case of a Permitted Asset Swap, with respect to any Disposition or series of related Dispositions pursuant to this clause (l) for a purchase price in excess of the greater of $100,000,000 and 1% of Consolidated EBITDA for the most recently ended Test Period, for all transactions permitted pursuant to this clause (l) since the Effective Date, the Company, a Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that for the purposes of this clause (ii), (A) the greater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of the Company (or a Parent Entity) provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of the Company (or Parent Entity) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company) of the Company, such Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Loan Document Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases the Company, such Borrower or such Restricted Subsidiary from such liabilities, (B) any securities received by Holdings, any Intermediate Parent, the Company, such Borrower or such Restricted Subsidiary from such transferee that are converted by the Company, such Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by Holdings, any Intermediate Parent, the Company, such Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of 5% of Consolidated Total Assets for the most recently ended Test Period as of the time of receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(m) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(n) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of the Company, the Borrowers and the Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(o) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(p) Dispositions of property for Fair Market Value not otherwise permitted under this Section 6.05 having an aggregate purchase price not to exceed $2,500,000,000;
(q) the sale or discount (with or without recourse) (including by way of assignment or participation) of DFS Financing Assets or other receivables (including, without limitation, trade and lease receivables) and related assets in connection with a Permitted Receivables Financing; and
(r) the unwinding of any Swap Obligations or Cash Management Obligations.
Appears in 1 contract
Asset Sales. The Borrower No Loan Party will, nor will not, and will not any Loan Party permit any Restricted Subsidiary its respective Subsidiaries to, (i) voluntarily sell, transfer, lease or otherwise dispose Dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning)it, except:
(a) Dispositions of (i) obsolete, damagednegligible, usedworn out, used or surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, (ii) property (including assets or property, any leasehold property interest) that is no longer (x) economically practical in its business, (y) commercially desirable or commercially reasonable to maintain or (z) used or useful, or economically practicable to maintain, useful in the conduct of the core or principal business of the Borrower and or any of its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated)Subsidiaries;
(b) Dispositions of inventory assets from one Loan Party to another Loan Party;
(c) Dispositions of Accounts (excluding sales or dispositions in a factoring arrangement) in connection with the compromise, settlement or collection thereof;
(d) Dispositions of cash and Permitted Investments in the ordinary course of business;
(e) Dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Subsidiary;
(f) Dispositions of assets by any Subsidiary that is not a Loan Party to a Loan Party or to a Subsidiary that is not a Loan Party;
(including Settlement Assetsg) Dispositions constituting Liens permitted under Section 6.02, Dispositions permitted under Section 6.03, Investments permitted under Section 6.04 or Restricted Payments permitted under Section 6.07;
(h) Dispositions of Intellectual Property (i) that is, in the reasonable judgment of the Borrower, no longer economically practicable to maintain or useful or material to in the conduct of the business of the Borrower and the Subsidiaries, taken as a whole, (ii) in the ordinary course of business, or (iii) to a third party where such Intellectual Property was developed in connection with any commercial arrangement that is entered into in the ordinary course of business by a Loan Party or consistent Subsidiary thereof with past practice such third party (including any such co- or joint-development or research agreements) and pursuant to such commercial arrangement (x) the Loan Party or Subsidiary and such third party agree (which agreement was made in their respective reasonable business judgment) that such Intellectual Property will be jointly-owned by the Loan Party or Subsidiary and such third party, (y) such Intellectual Property is related to or an improvement, derivative, or the like of such third party’s or any of its Affiliates’ pre-existing or background Intellectual Property, or (z) as between such third party and such Loan Party or Subsidiary, such Intellectual Property primarily relates to the business of such third party and its Affiliates;
(i) Dispositions of non-core assets acquired in a Permitted Acquisition or Dispositions required to obtain antitrust approval of a Permitted Acquisition or other Investment;
(j) licenses or sublicenses of Intellectual Property rights granted by Borrower or its Subsidiaries in the ordinary course of business (or in connection with a commercial agreement entered into in the ordinary course of business) or not interfering in any material respect with the ordinary conduct of the business of the Borrower or such Subsidiary;
(k) [intentionally omitted];
(l) Dispositions of assets that are not permitted by any other clause of this Section 6.05, provided that the aggregate fair market value of all assets Disposed of in reliance upon this paragraph (l) shall not exceed $3,000,000 in any fiscal year; provided that, all Dispositions pursuant to Section 6.05(l) shall be made for fair value and at least 75% of the consideration from such Disposition received by any Loan Party or Subsidiary, as applicable, shall be in the form of cash or Permitted Investments;
(m) [intentionally omitted];
(n) sales, transfers or other Dispositions of Investments in joint ventures permitted under Section 6.04(r) to the extent required by, or made pursuant to customary buy/sell arrangements between, the parties set forth in joint venture arrangements and similar binding agreements (and not included in such joint venture arrangements and similar binding agreements in contemplation of such sale, transfer or other Disposition);
(o) Dispositions of assets, including inventory and goods held for sale or no longer used sale, in the ordinary course of business and immaterial assets (considered in the aggregate) including termination of leases and licenses in the ordinary course of business, and a voluntary or mandatory recall of any product);
(cp) Dispositions of property pursuant to sale and leaseback transactions, including those contemplated on the Effective Date and included on Schedule 6.05;
(q) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds the proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(dr) Dispositions of property assets not constituting Collateral in an aggregate amount not to exceed $15,000,000 in any fiscal year;
(s) the Borrower and any Subsidiary may (i) convert any intercompany Indebtedness to Equity Interests otherwise permitted hereunder, (ii) discount, write off, forgive or cancel any intercompany Indebtedness or other obligation owing by the Borrower or any other Loan Party to a Restricted Subsidiary; provided Subsidiary that if the transferor is not, in such a transaction is each case, a Loan Party, then either (i) the transferee must be a Party or to another Loan Party, (iiiii) settle, discount, write-off, forgive or cancel any Indebtedness owing by any present or former consultants, managers, directors, officers, employees of the Borrower or any Subsidiary or any of their successors or assigns, in the ordinary course of business, or (iv) surrender or waive contractual rights and settle, release, surrender or waive contractual or litigation claims, in the case of clause (iv), in the ordinary course of business;
(t) to the extent constituting an Investmentallowable under Section 1031 of the Code, such Investment must be a permitted Investment or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Restricted Subsidiary that is not a Loan Party similar business; and
(u) any swap of assets in accordance with Section 7.04 exchange for services or (iii) other assets in the ordinary course of business of comparable or greater value or usefulness to the extent constituting business of the Borrower and its Subsidiaries as a Disposition to a Restricted Subsidiary that is not a Loan Partywhole, such Disposition is for fair market value (as determined in good faith by the management of the Borrower) , in an aggregate amount not to exceed $15,000,000. Notwithstanding any other provision contained herein, for all purposes of this Agreement and any promissory note the other Loan Documents, all licenses, sublicenses, or other non-cash consideration received rights granted by Borrower or any of its Subsidiaries prior to the date hereof in respect thereof is connection with any Intellectual Property Rights (together with any other rights or obligations (including sales, assignments, conveyances, transfers, licenses, sublicenses, or other dispositions) (x) granted in connection with the foregoing prior to the date hereof or (y) required to be granted, or otherwise exercisable in connection with, the foregoing prior to or following the date hereof) shall be deemed, as applicable, a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Disposition pursuant to this Section 7.04; (e) Dispositions permitted by Section 7.03, Investments permitted by Section 7.04, Restricted Payments permitted by Section 7.07 6.05 and Liens permitted by Section 7.02;Permitted Liens.
Appears in 1 contract
Asset Sales. The Borrower Holdings will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower Holdings or a any Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
(a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower Holdings and its any Restricted Subsidiaries Subsidiary (including by ceasing to enforce, abandoning, allowing any registration to lapse, terminate or application for registration be invalidated, discontinuing the use or maintenance of or putting into the public domain, any Intellectual Property that is is, in the reasonable judgment of Holdings or the Restricted Subsidiaries, no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidatedin respect of which the Holdings or any Restricted Subsidiary determines in its reasonable business judgment that such action or inaction is desirable);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower Holdings or a any Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (iii) such Disposition is for Fair Market Value (as determined in good faith by the Borrower) and to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.07 and Liens permitted by Section 7.026.02;
(f) Dispositions of property acquired by Holdings or any of the Restricted Subsidiaries after the Effective Date pursuant to sale-leaseback transactions permitted pursuant to Section 6.06;
(g) Dispositions of Permitted Investments;
(h) Dispositions or forgiveness of accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties);
(i) leases, subleases, service agreements, product sales, licenses or sublicenses (including licenses and sublicenses of Intellectual Property), in each case that do not materially interfere with the business of Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events;
(k) Dispositions of property to Persons other than Restricted Subsidiaries (including the sale or issuance of Equity Interests of a Restricted Subsidiary) for Fair Market Value (as determined by a in good faith by the board of directors of the Borrower) not otherwise permitted under this Section 6.05; provided that with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of $30,000,000, Holdings, the Borrower or such Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that solely for the purposes of this clause (k), (A) any liabilities (as shown on the most recent balance sheet of Holdings or such Restricted Subsidiary or in the footnotes thereto) of Holdings or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the First Lien Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which Holdings and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities, notes or other obligations or assets received by Holdings, the Borrower or such Restricted Subsidiary from such transferee that are converted by Holdings or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within one hundred and eighty (180) days following the closing of the applicable Disposition, shall be deemed to be cash, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to t Holdings or its Restricted Subsidiaries), to the extent that Holdings and all of the Restricted Subsidiaries (to the extent previously liable thereunder) are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition, shall be deemed to be cash, (D) any Designated Non-Cash Consideration received by Holdings or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value (as determined by a Responsible Officer of the Borrower in good faith), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess of the greater of (A) $35,200,000 and (B) 20% of Consolidated EBITDA for the most recently ended Test Period at the time of the receipt of such Designated Non-Cash Consideration, with the Fair Market Value (as determined by a Responsible Officer of the Borrower in good faith) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash and (E) at the time of and immediately after giving effect to such Disposition, no Default or Event of Default shall have occurred and be continuing;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) [reserved];
(n) additional Dispositions; provided that at the time any such Dispositions is made, the aggregate outstanding amount of such Dispositions made in reliance on this clause (n), together with the aggregate amount of all consideration paid in connection with all other Dispositions made in reliance on this clause (n), shall not exceed the sum of the greater of (A) $35,200,000 and (B) 20% of Consolidated EBITDA for the most recently ended Test Period after giving Pro Forma Effect to the making of such Dispositions; provided that such Disposition is for Fair Market Value (as determined in good faith by the Borrower) ;
(o) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment not prohibited hereunder, which assets are not used or useful to the core or principal business of Holdings and the Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(p) (i) any Disposition of accounts receivable, Securitization Assets, any participations thereof, or related assets in connection with or any Qualified Securitization Facility, (ii) the sale or discount of inventory, accounts receivable or notes receivable in the ordinary course of business (including sales to factors or other third parties) or in connection with any supplier and/or customer financing or (iii) the conversion of accounts receivable to notes receivable;
(q) transfers of condemned real property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of real property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement; and
(r) non-exclusive licenses or sublicenses, or other similar grants of rights, to Intellectual Property in the ordinary course of business.
Appears in 1 contract
Sources: Credit Agreement (LivaNova PLC)
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, (i) voluntarily sell, transfer, lease or otherwise dispose (including pursuant to a division) of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
(a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, be dedicated to the public domain or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.03, 6.03 and Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.07 and Liens permitted by Section 7.026.02;
(f) Dispositions of property pursuant to sale and leaseback transactions permitted by Section 6.06 hereto;
(g) Dispositions of Permitted Investments;
(h) Dispositions of accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties);
(i) leases, subleases, service agreements, product sales, abandonments, licenses, sublicenses or other disposals (including of Intellectual Property), in each case, (A) granted in the ordinary course of business or (B) that do not materially interfere with the business of the Borrower and its Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events;
(k) Dispositions of property to Persons other than Subsidiaries (including the sale or issuance of Equity Interests of a Subsidiary and including the sale of real property) for fair market value (as determined by a Responsible Officer of the Lead Borrower in good faith) not otherwise permitted under this Section 6.05; provided that with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of (x) with respect to any single transaction or series of related transactions, $11,500,000 or (y) with respect to all other Dispositions in any fiscal year of the Lead Borrower not excluded from the requirements of this proviso pursuant to the immediately preceding subclause (x), $23,000,000, the Borrower or any Subsidiary shall receive not less than 75% of such consideration in excess of the amounts referred to subclauses (x) and (y) in the form of cash or Permitted Investments; provided, however, that solely for the purposes of this clause (k), (A) any liabilities (as shown on the most recent balance sheet of the Borrower or such Subsidiary or in the footnotes thereto) of the Borrower or such Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities, notes or other obligations or assets received by the Borrower or such Subsidiary from such transferee that are converted by the Borrower or such Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within one hundred and eighty (180) days following the closing of the applicable Disposition, shall be deemed to be cash, (C) Indebtedness of any Subsidiary that ceases to be a Subsidiary as a result of such Disposition (other than intercompany debt owed to the Borrower or its Subsidiaries), to the extent that the Borrower and all of the Subsidiaries (to the extent previously liable thereunder) are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition, shall be deemed to be cash and (D) any Designated Non-Cash Consideration received by the Borrower or such Subsidiary in respect of such Disposition having an aggregate fair market value (as determined by a Responsible Officer of the Lead Borrower in good faith), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess of $28,750,000, with the fair market value (as determined in good faith by the Lead Borrower) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash; provided, further, that, other than in respect of the Disposition described on Schedule 6.05(k), no Event of Default shall have occurred and be continuing at the time of, and after giving effect to, any Disposition made pursuant to this clause (k);
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions or forgiveness of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof;
(n) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment not prohibited hereunder, which assets are not used or useful to the core or principal business of the Borrower and its Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(o) Dispositions of assets that are not Collateral in an aggregate amount not to exceed the greater of $9,200,000 and 2.875% of Consolidated EBITDA for the most recently ended Test Period in any fiscal year of the Lead Borrower;
(p) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(q) any Disposition of the Equity Interests of any Immaterial Subsidiary;
(r) other Dispositions in an aggregate amount not to exceed the greater of $9,200,000 and 2.875% of Consolidated EBITDA for the most recently ended Test Period in any fiscal year of the Lead Borrower;
(s) the sale by the Liberty Parties of Liberty Area Development Rights, Liberty Franchise Rights, and store locations (and customer lists and other assets related thereto), in each case in the ordinary course of business and consistent with past practice; provided further that no Event of Default under paragraph (a), (b), (d) (solely as a result of an Event of Default due to failure to comply with a Financial Maintenance Covenant, subject to the cure rights set forth in Section 7.02 and solely after the expiration of the applicable Cure Expiration Date), (h) or (i) of Section 7.01 shall have occurred and be continuing at the time of, and after giving effect to, any Disposition made pursuant to this clause (s); and
(t) sales or other dispositions by any Borrower or any Subsidiary of assets in connection with the closing or sale of a retail store location (the closure of a store is not in and of itself the disposition of assets), warehouse, distribution center or corporate office of such Borrower or Subsidiary in the ordinary course of business of such Borrower or Subsidiary, which sale or disposition consists of leasehold interests in the premises of such store or distribution center, the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such store or distribution center; provided, that, such sale shall be on commercially reasonable prices and terms in a bona fide arm’s length transaction. Notwithstanding anything to the contrary in this Section 6.05, other than by virtue of the sale of the Equity Interests of, or all or substantially all of the assets of, one or more Subsidiaries in a transaction not prohibited by this Agreement, no Loan Party shall, directly or indirectly, sell or otherwise transfer (except for non-exclusive leases or non-exclusive licenses with respect thereto) any Material Intellectual Property as of the Effective Date or any interest in any Franchise Agreement to any non-Loan Party.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Franchise Group, Inc.)
Asset Sales. The Neither Holdings nor the Parent Borrower will, nor will not, and will not they permit any Restricted Subsidiary or Intermediate Parent to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it it, nor will Holdings or (ii) the Parent Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals or other Persons to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Holdings, the Parent Borrower or a Restricted Subsidiary in compliance with Section 7.04(c)6.01(b) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of Holdings, any Intermediate Parent, the Parent Borrower and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement propertyproperty or (iii) such Disposition is allowable under Section 1031 of the Code, or any comparable or successor provision is for like property (and any boot thereon) and for use in a Similar Business;
(d) Dispositions of property to the Parent Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.08 and Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e);
(f) any issuance, sale or pledge of Equity Interests in, or Indebtedness, or other securities of, an Unrestricted Subsidiary;
(g) Dispositions of Permitted Investments;
(h) Dispositions of (A) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) and (B) receivables and related assets pursuant to a Permitted Receivables Financing;
(i) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case that do not materially interfere with the business of Holdings, the Parent Borrower and its Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(k) Dispositions of property to Persons other than Restricted Subsidiaries (including the (x) sale or issuance of Equity Interests of a Restricted Subsidiary and (y) any Sale Leaseback) not otherwise permitted under this Section 6.05; (i) such Disposition is made for Fair Market Value and (ii) with respect to any Disposition pursuant to this clause (k) for a purchase price in excess the greater of (x) $5,000,000 and (y) 5% of Consolidated EBITDA for the most recently ended Test Period for any transaction or series of related transaction, Holdings, the Parent Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that for the purposes of this clause (iii), (A) the greater of the principal amount and the carrying value of any liabilities (as shown on the most recent balance sheet of Holdings provided hereunder or in the footnotes thereto) or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of Holdings (or Parent Entity) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by Holdings) of Holdings, the Parent Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which Holdings, any Intermediate Parent, the Parent Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities received by Holdings, any Intermediate Parent, the Parent Borrower or such Restricted Subsidiary from such transferee that are converted by Holdings, any Intermediate Parent, the Parent Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by Holdings, any Intermediate Parent, the Parent Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess of 5% of Consolidated Total Assets for the most recently ended Test Period as of the time of receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(l) Dispositions of Investments in joint ventures, including to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of Intermediate Parent, the Parent Borrower and the Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition; and
(n) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(o) Dispositions by a captive insurance subsidiary of Investments;
(p) the unwinding of any Swap Obligations or Cash Management Obligations; and
(q) Dispositions of property for Fair Market Value not otherwise permitted under this Section 6.05 having an aggregate purchase price not to exceed the greater of (A) $15,000,000 and (B) 15% of Consolidated EBITDA for the most recently ended Test Period at the time of such Disposition.
Appears in 1 contract
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any assetasset (in one transaction or in a series of related transactions and whether effected pursuant to a Division or otherwise), including any Equity Interest owned by it or (ii) it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals or other Persons to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Holdings, the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c5.2(d)(iii)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(ai) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower and its Restricted the Subsidiaries (including allowing any Intellectual Property (and any related registration or application for registration of any Intellectual Property application) that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, abandoned or be invalidated);
(bii) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(ciii) Dispositions of property to the extent that (iA) such property is exchanged for credit against the purchase price of similar replacement property or property, (iiB) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement propertyproperty or (C) such Disposition qualifies for non-recognition treatment under Section 1031 of the Code, or any comparable or successor provision for like-kind property (and any boot thereon) and for use in a Similar Business;
(div) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Note Party, then either (iA) the transferee must be a Loan Note Party, (iiB) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Note Party in accordance with permitted by Section 7.04 5.2(d) or (iiiC) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Note Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value having an aggregate purchase price not to exceed $3,000,000 and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Note Party in accordance with permitted by Section 7.04; 5.2(d);
(ev) Dispositions permitted by Section 7.035.2(c), Investments permitted by Section 7.045.2(d), Restricted Payments and prepayments, purchases and redemptions of Indebtedness permitted by Section 7.07 5.2(h), and Liens permitted by Section 7.025.2(b), in each case, other than by reference to this Section 5.2(e)(v);
(vi) Dispositions of property and assets set forth in Schedule 5.2(e)(vi);
(vii) Dispositions of Permitted Investments;
(viii) Dispositions of (A) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties), but other than pursuant to a factoring or receivables financing transaction and (B) receivables and related assets pursuant to any Permitted Receivables Financing;
(ix) leases, subleases, service agreements, covenants not to sue, licenses or sublicenses (including agreements involving the provision of software under an open source license, in copy or as a service, and related data and services), in each case that do not materially interfere with the business of the Borrower and the Subsidiaries, taken as a whole;
(x) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(xi) other Dispositions to third parties that are not Affiliates of the Borrower or any of its Subsidiaries; provided that (A) such Disposition is made for Fair Market Value and (B) except in the case of a Permitted Asset Swap, with respect to any Disposition pursuant to this clause (xi) for a purchase price in excess of the greater of (x) $10,000,000 and (y) 1.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period as of such time determined on a Pro Forma Basis for any transaction or series of related transactions, the Borrower or a Subsidiary shall receive not less than (I) 75% of such consideration in the form of cash or Permitted Investments for all transactions permitted pursuant to this clause (xi) since the Funding Date or (II) 50% of such consideration for any individual transaction or series of related transactions in the form of cash or Permitted Investments; provided, however, that for the purposes of this clause (II), (1) the greater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of the Borrower (or a Parent Entity) provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of the Borrower (or a Parent Entity) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower, of the Borrower or such Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases the Borrower or such Subsidiary from such liabilities, (2) any securities received by the Borrower or such Subsidiary from such transferee that are converted by the Borrower or such Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash, (3) the amount of Indebtedness, other than liabilities that are by their terms subordinated to the Obligations or any intercompany debt owed to the Borrower or any Subsidiary, that is of any Person that is no longer a Subsidiary as a result of such Disposition, to the extent that the Borrower and all Subsidiaries have been validly released from any guarantee of payment of such Indebtedness in connection with such Disposition, (4) the amount of consideration consisting of Indebtedness of any Note Party (other than Junior Financing) received after the Revolving Credit Agreement Effective Date from Persons who are not the Borrower or any Subsidiary and (5) any Designated Non-Cash Consideration received by the Borrower or such Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (xi) that is at that time outstanding, not in excess (at the time of receipt of such Designated Non-Cash Consideration) of the greater of (x) $20,000,000 and (y) 3.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period as of such time determined on a Pro Forma Basis, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(xii) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(xiii) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of the Borrower and the Subsidiaries or (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(xiv) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(xv) Dispositions by a captive insurance subsidiary of Investments;
(xvi) from and after the Revolving Credit Agreement Effective Date, Dispositions to third parties that are not Affiliates of the Borrower or any of its Subsidiaries of property for Fair Market Value to third parties that are not Affiliates not otherwise permitted under this Section 5.2(e) having an aggregate purchase price not to exceed the greater of (A) $20,000,000 and (B) 3.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period as of such time determined on a Pro Forma Basis;
(xvii) the sale or discount (with or without recourse) (including by way of assignment or participation) of other receivables (including, without limitation, trade and lease receivables) and related assets in connection with a Permitted Receivables Financing; and
(xviii) the unwinding of any Swap Obligations or Cash Management Obligations.
Appears in 1 contract
Asset Sales. The Neither Holdings nor the Parent Borrower will, nor will not, and will not they permit any Restricted Subsidiary or Intermediate Parent to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it it, nor will Holdings or (ii) the Parent Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals or other Persons to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Holdings, the Parent Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.01(b)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, damaged, used, surplus obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of Holdings, any Intermediate Parent, the Parent Borrower and its Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated);
(b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Parent Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.08 and Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e);
(f) Dispositions of property acquired by Holdings, the Parent Borrower or any of its Restricted Subsidiaries after the Effective Date pursuant to sale-leaseback transactions permitted by Section 6.06;
(g) Dispositions of Permitted Investments;
(h) Dispositions of (A) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) and (B) receivables and related assets pursuant to a Permitted Receivables Financing;
(i) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case that do not materially interfere with the business of Holdings, the Parent Borrower and its Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(k) Dispositions of property to Persons other than Restricted Subsidiaries (including the sale or issuance of Equity Interests of a Restricted Subsidiary) not otherwise permitted under this Section 6.05; provided that (i) no Significant Event of Default shall have occurred and be continuing at the time of entering into any binding letter of intent or purchase agreement with respect to such Disposition, (ii) such Disposition is made for Fair Market Value and (iii) with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of $5,000,000 for any transaction or series of related transaction, Holdings, the Parent Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that for the purposes of this clause (iii), (A) any liabilities (as shown on the most recent balance sheet of Holdings provided hereunder or in the footnotes thereto) or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of Holdings (or Parent Entity) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by Holdings) of Holdings, the Parent Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Loan Document Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which Holdings, any Intermediate Parent, the Parent Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities received by Holdings, any Intermediate Parent, the Parent Borrower or such Restricted Subsidiary from such transferee that are converted by Holdings, any Intermediate Parent, the Parent Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by Holdings, any Intermediate Parent, the Parent Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess of $2,500,000, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(l) Dispositions of Investments in joint ventures, including to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of Intermediate Parent, the Parent Borrower and the Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition; and
(n) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(o) Dispositions by a captive insurance subsidiary of Investments; and
(p) the unwinding of any Swap Obligations or Cash Management Obligations.
Appears in 1 contract
Asset Sales. The Borrower will not, and nor will not it permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted another Subsidiary in compliance with Section 7.04(c)6.04) (each, a “Disposition” and the term or “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of (i) inventory in the ordinary course of business, (ii) used, obsolete, damaged, used, surplus or worn out propertyor surplus equipment or property in the ordinary course of business; and (iii) property no longer used or useful, whether now owned or hereafter acquiredeconomically practicable or commercially desirable to maintain, in the conduct of the business of the Borrower and Dispositions any Subsidiary (including by ceasing to enforce or allowing the lapse, abandonment or invalidation of non-core assets or propertydiscontinuing the use or maintenance of or putting into the public domain any intellectual property that is, including assets or propertyin the reasonable judgment of the Borrower, no longer used or useful, or economically practicable or commercially desirable to maintain, or in respect of which the Borrower determines in its reasonable business judgment that such action or inaction is desirable, in each case pursuant to this clause (iii), which has a Fair Market Value, individually or in the conduct aggregate, in an amount not to exceed $5,000,000 for the period of the core or principal business four consecutive fiscal quarters of the Borrower and its Restricted Subsidiaries most recently ended for which financial statements have been delivered (including allowing any registration or application for registration calculated at the time of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidatedsuch Disposition));
(b) Dispositions to the Borrower or any Subsidiary, provided that any such sales, transfers or dispositions from a Loan Party to a Subsidiary that is not a Loan Party or from the Borrower or a Subsidiary shall constitute Investments subject to Section 6.04;
(c) Dispositions of inventory accounts receivable in connection with the compromise, settlement or collection thereof consistent with past practice;
(d) to the extent constituting Dispositions, transactions permitted by Sections 6.02, 6.03, 6.04, 6.06 and 6.08;
(e) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(f) Dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Subsidiary;
(g) Dispositions of assets that are not permitted by any other paragraph of this Section 6.05, provided that the aggregate Fair Market Value represented by such assets during any period of four consecutive fiscal quarters is not greater than $10,000,000 for the period of four consecutive fiscal quarters of the Borrower most recently ended for which financial statements have been delivered (including Settlement Assetscalculated at the time of such Disposition);
(h) exchanges of property for similar replacement property for fair value;
(i) [reserved];
(j) [reserved];
(k) the sale or other Disposition of Permitted Investments;
(l) to the extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by the Borrower or any of the Subsidiaries that is not in contravention of Section 6.03(b);
(m) [reserved];
(n) the non-exclusive licensing or sublicensing of intellectual property in the ordinary course of business or consistent in accordance with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of businessindustry practice;
(co) Dispositions the unwinding of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;Swap Agreements permitted by Section 6.14 and Permitted Equity Derivatives; and
(dp) Dispositions the compromise, settlement, release or surrender of property to a contract, tort or other litigation claim, arbitration or other disputes. provided that all sales, transfers, leases and other dispositions permitted by clause (g) above shall be made for Fair Market Value and for at least 75% cash consideration (it being understood that the following shall constitute cash consideration: real estate, equipment or other operating assets used or useful in a Permitted Business received by the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartySubsidiaries as consideration (excluding stock, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 notes or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrowerother securities)) and any promissory note or after giving effect to such sales, transfers, leases and other non-cash consideration received dispositions permitted hereby the Borrower shall be in respect thereof is compliance with the Financial Performance Covenants on a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; (e) Dispositions permitted by Section 7.03, Investments permitted by Section 7.04, Restricted Payments permitted by Section 7.07 and Liens permitted by Section 7.02;pro forma basis.
Appears in 1 contract
Sources: Credit Agreement (Tempus AI, Inc.)
Asset Sales. The Borrower Holdings will not, and will not permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower Holdings or a any Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except:
: (a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of the Borrower Holdings and its any Restricted Subsidiaries Subsidiary (including by ceasing to enforce, abandoning, allowing any registration to lapse, terminate or application for registration be invalidated, discontinuing the use or maintenance of or putting into the public domain, any Intellectual Property that is is, in the reasonable judgment of Holdings or the Restricted Subsidiaries, no longer used or useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidatedin respect of which the Holdings or any Restricted Subsidiary determines in its reasonable business judgment that such action or inaction is desirable);
; (b) Dispositions of inventory and other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business;
; (c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
; (d) Dispositions of property to the Borrower Holdings or a any Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (iii) such Disposition is for Fair Market Value (as determined in good faith by the Borrower) and to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.046.04; (e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 6.07 and Liens permitted by Section 7.026.02; (f) Dispositions of property acquired by Holdings or any of the Restricted Subsidiaries after the Effective Date pursuant to sale-leaseback transactions permitted pursuant to Section 6.06; (g) Dispositions of Permitted Investments; (h) Dispositions or forgiveness of accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties); (i) leases, subleases, service agreements, product sales, licenses or sublicenses (including licenses and sublicenses of Intellectual Property), in each case that do not materially interfere with the business of Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole; (j) transfers of property subject to Casualty Events;
Appears in 1 contract
Sources: Credit Agreement (LivaNova PLC)
Asset Sales. The Neither Holdings nor the Borrower will, nor will not, and will not they permit any Restricted Subsidiary to, (i) voluntarily sell, transfer, lease lease, license or otherwise dispose of any asset, including any Equity Interest owned by it and including any disposition of property to a Delaware Divided LLC pursuant to a Delaware LLC Division or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to Holdings, the Borrower or a Restricted Subsidiary in compliance with Section 7.04(c6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning”), except:
(a) Dispositions of obsolete, non-core, surplus, damaged, usedunnecessary, surplus unsuitable or worn out propertyproperty or equipment, inventory or other assets, whether now owned or hereafter acquired, in the ordinary course of business or consistent with industry or past practice and Dispositions of non-core assets or property, including assets or property, property no longer used or useful, or economically practicable to maintain, in the conduct of the core or principal business of Holdings, the Borrower and its the Restricted Subsidiaries (including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful, or economically practicable to maintain, to lapse, lapse or go abandoned, abandoned or be invalidated);
(b) Dispositions the lapse, abandonment or invalidation of inventory intellectual property rights that are not material to the conduct of Holdings and other assets (including Settlement Assets) in the ordinary course of business its Restricted Subsidiaries, taken as a whole, or consistent with past practice that are no longer used or held for sale useful or no longer used economically practicable or commercially reasonable to maintain, in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of businesseach case as reasonably determined by Holdings;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or property, (ii) an amount equal to the Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement propertyproperty or (iii) such Disposition is allowable under Section 1031 of the Code, or any comparable or successor provision is for like property (and any boot thereon) and for use in a Similar Business;
(d) Dispositions of property to Holdings, the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party, (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04; 6.04;
(e) Dispositions permitted by Section 7.036.03, Investments permitted by Section 7.046.04, Restricted Payments permitted by Section 7.07 and 6.08, Liens permitted by Section 7.026.02, in each case, other than by reference to this Section 6.05(e);
(f) any issuance, disposition or pledge of Equity Interests in, or Indebtedness, or other securities of, an Unrestricted Subsidiary (or a Restricted Subsidiary which owns an Unrestricted Subsidiary so long as such Restricted Subsidiary owns no assets other than the Equity Interests of such Unrestricted Subsidiary);
(g) Dispositions of Permitted Investments;
(h) Dispositions or discounts without recourse (including by way of assignment or participation) of (A) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) and (B) receivables and related assets pursuant to any Permitted Receivables Financing;
(i) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and that do not materially interfere with the business of Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole;
(j) transfers of property subject to any Casualty Event upon receipt of the Net Proceeds of such Casualty Event;
(k) Dispositions of property to Persons other than Holdings, the Borrower or any of the Restricted Subsidiaries (including (x) the sale or issuance of Equity Interests in a Restricted Subsidiary and (y) any Sale Leaseback) not otherwise permitted under this Section 6.05; provided that (i) such Disposition is made for Fair Market Value and (ii) except in the case of a Permitted Asset Swap, with respect to any Disposition or series of related Dispositions pursuant to this clause (k) for a purchase price in excess of the greater of $500,000,000 and 33.0% of Consolidated EBITDA for the most recently ended Test Period, for all transactions permitted pursuant to this clause (k) since the Effective Date, the Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that for the purposes of this clause (ii), (A) the greater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of Holdings (or a Parent Entity) provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of Holdings (or Parent Entity) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by Holdings) of Holdings or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Loan Document Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases Holdings or such Restricted Subsidiary from such liabilities (it being agreed that any reduction in liabilities that would otherwise have been owed (in the good faith judgment of Holdings) by Holdings or any Restricted Subsidiary to a Sports Partner if not for a disposition pursuant to clause (t) below shall be deemed to be cash for purposes of this clause (ii)), (B) any securities received by Holdings, the Borrower or such Restricted Subsidiary from such transferee that are converted by Holdings, the Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by Holdings, the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (k) that is at that time outstanding, not in excess (at the date of agreement for the related Disposition) of the greater of $450,000,000 and 5.0% of Consolidated Total Assets of Holdings and its Restricted Subsidiaries, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time of contractually agreeing to such Disposition and without giving effect to subsequent changes in value, shall be deemed to be cash;
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) Dispositions of any assets (including Equity Interests) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of the Borrower and the Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority or any other Governmental Authority or otherwise necessary or advisable to consummate any acquisition (including any Permitted Acquisition) after the Effective Date, as determined by Holdings;
(n) transfers of condemned property, asset, Equity Interests or Indebtedness as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property, asset, Equity Interests or Indebtedness arising from foreclosure, condemnation, expropriation, forced dispositions, or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(o) the sale or discount or disposition (with or without recourse) (including by way of assignment or participation) of receivables (including, without limitation, trade and lease receivables) and related assets in connection with a Permitted Receivables Financing;
(p) the unwinding of any Swap Obligations or Cash Management Obligations;
(q) [reserved];
(r) any sale, transfer or other disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC; provided that the Borrower has complied with Section 5.11 to the extent applicable;
(s) any disposition of property, assets, Equity Interests or Indebtedness that was acquired with Excluded Contributions if the proceeds of such disposition are used to make a Restricted Payment pursuant to Section 6.08(a)(xx);
(t) any disposition of Equity Interests to any Sports Partner in connection with the negotiation of media rights or other contracts in the ordinary course of business to the extent that after giving effect to such disposition such Sports Partner holds minority Equity Interests in the Person whose Equity Interests are disposed of; and
(u) any disposition of property, assets or Equity Interests in connection with the College Sports Transaction. To the extent any Collateral is Disposed of as expressly permitted by this Section 6.05 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent or the Collateral Agent, as applicable, shall take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract