Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter into any sale-lease-back transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that: (i) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.07; (ii) each of the Borrower and its Subsidiaries may in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete or worn out; (iii) each of the Borrower and its Subsidiaries may sell assets (other than the capital stock of any Subsidiary Guarantor and any Designated Hotel Property), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iii) shall not exceed $20,000,000 in any fiscal year of the Borrower; (iv) each of the Borrower and its Subsidiaries may sell the Designated Hotel Properties (other than pursuant to a sale-leaseback transaction), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv); (v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i); (vi) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Ventures, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi); (vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i); (viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction; (ix) Investments may be made to the extent permitted by Section 9.05; -76- 84 (x) each of the Borrower and its Subsidiaries may lease (as lessee) real or personal property (so long as any such lease does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv)); (xi) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business; (xii) the Transaction shall be permitted; (xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07; (xiv) each of the Borrower and its Subsidiaries may enter into sale-lease-back transactions with respect to owned Hotel Properties (including the Designated Hotel Properties), so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom; (xv) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred); (xvi) each of the Borrower and its Subsidiaries may grant leases or sub-leases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries; (xvii) each of the Borrower and its Subsidiaries may sell Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as each such sale is for cash and at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be); and (xviii) each of the Borrower and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one another so long as any such license by the Borrower or any other Credit Party in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that the security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any other Credit Party pursuant to the Security Agreement in the intellectual property covered by such license. To the extent the Required Banks waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 (other than to the Borrower or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Doubletree Corp)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Restricted Subsidiaries to, wind up, liquidate or dissolve its affairs or enter merge or consolidate into or with any transaction of merger or consolidationPerson, or convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter into any sale-lease-back leaseback transactions, or purchase or otherwise acquire (in one an Acquired Entity or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time)Business, except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(iia) each of the Borrower and its Restricted Subsidiaries may sell inventory in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete or worn outbusiness;
(iiib) each of the Borrower and its Restricted Subsidiaries may liquidate or otherwise dispose of obsolete or worn-out property in the ordinary course of business;
(c) Investments may be made to the extent permitted by Section 9.05;
(d) each of the Borrower and its Restricted Subsidiaries may sell assets (other than the capital stock including by way of any Subsidiary Guarantor and any Designated Hotel Property), merger or consolidation or in connection with sale-leaseback transactions) so long as (i) no Default or Event of Default then exists has occurred and is continuing or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Restricted Subsidiary receives at least fair market value (Fair Market Value as determined in good faith by the Borrower or such Subsidiary, as the case may be)Borrower, (iii) at least 75% with respect to any such transaction in which the purchase price is in excess of $3,000,000, the total consideration received by the Borrower or such Restricted Subsidiary is consists of at least 75% cash and is or Cash Equivalents paid at the time of the closing of such sale; provided, however, that for the purposes of this clause (iii), (w) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the Obligations or that are owed to the Borrower or any Restricted Subsidiary) of the Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or the notes thereto) that are assumed by the transferee of any such assets and for which the Borrower and/or its applicable Restricted Subsidiary have been validly released by all relevant creditors in writing, (x) the amount of any trade-in value applied to the purchase price of any replacement asses acquired in connection with such disposition, (y) any securities received by the Borrower or any Restricted Subsidiary from such transferee that are converted by such Person 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 and (z) any Designated Non-Cash Consideration received by the Borrower or any of its Restricted Subsidiaries in such sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at such time outstanding, not to exceed the greater of (x) $7,500,000 and (y) 10.0% of Consolidated EBITDA as of the last day of the most recent Test Period at 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, and (iv) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(f) and (v) the aggregate amount 4.02(c); provided that no capital stock or other Equity Interests of the proceeds received from all assets any Restricted Subsidiary shall be sold pursuant to this clause (iiid), unless (1) shall all of the capital stock or other Equity Interests of such Restricted Subsidiary are sold in accordance with this clause (d) or (2) such sale is a sale of less than 100% of the capital stock or other Equity Interests of an Excluded Subsidiary; provided that the aggregate Fair Market Value of all such sales of capital stock or other Equity Interests pursuant to this clause (2) does not exceed $20,000,000 in any fiscal year 2.5% of Consolidated Total Assets of the BorrowerBorrower and its Restricted Subsidiaries as of the date of any such sale;
(ive) each of the Borrower and its Subsidiaries may sell the Designated Hotel Properties (other than pursuant to a sale-leaseback transaction), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Ventures, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84
(x) each of the Borrower and its Restricted Subsidiaries may lease (as lessee), sublease (as sublessee) or license (as licensee) real or personal property (so long as any such lease or license does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv9.04(d));
(xif) each of the Borrower and its Restricted Subsidiaries may make sales of inventory sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(xii) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xivg) each of the Borrower and its Restricted Subsidiaries may enter into sale-lease-back transactions grant licenses, sublicenses, leases or subleases (including with respect to owned Hotel Properties (including intellectual property, to the Designated Hotel Properties)extent such license, so long as each such transaction (w) sublicense, lease or sublease is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xvexclusive) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xvi) each of the Borrower and its Subsidiaries may grant leases or sub-leases to other Persons in the ordinary course of business not materially interfering with the conduct of the business of the Borrower or any of its Restricted Subsidiaries;
(xviih) the Borrower or any Restricted Subsidiary of the Borrower may convey, sell or otherwise transfer all or any part of its business, properties and assets to any Qualified Credit Party, so long as any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect (including, as the case may be, as same may be replaced by the transferee Qualified Credit Party) and perfected (to at least the same extent as in effect immediately prior to such transfer) and all actions required to maintain or renew said perfected status have been taken;
(i) any Restricted Subsidiary of the Borrower may merge or consolidate with and into, or be dissolved or liquidated into, any Qualified Credit Party, so long as (i) in the case of any such merger, consolidation, dissolution or liquidation involving the Borrower, the Borrower is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, (ii) in the case of any such merger, consolidation, dissolution or liquidation involving a Credit Party, a Credit Party is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, and (iii) all actions required to create or maintain perfected Liens in respect of assets required to be Collateral have been taken;
(j) Permitted Acquisitions may be consummated, including by way of merger or consolidation, in accordance with the requirements of Section 8.13;
(k) each of the Borrower and its Restricted Subsidiaries may sell liquidate or otherwise dispose of Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as Equivalents, in each such sale is case for cash or Cash Equivalents;
(l) Liens may be granted to the extent permitted by Section 9.01;
(m) any involuntary loss, damage or destruction of property and at fair market value the disposition of the assets so damaged or destroyed shall be permitted;
(as determined n) any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of use of property shall be permitted;
(o) the lapse, abandonment or cancellation of registered or pending patents, trademarks and other intellectual property of the Borrower and its Restricted Subsidiaries shall be permitted in good faith by the reasonable business judgment of the Borrower or such Restricted Subsidiary;
(p) any Restricted Subsidiary of the Borrower that is not a Credit Party may be merged, consolidated or amalgamated with and into, or be dissolved or liquidated into, or transfer any of its assets to, any Restricted Subsidiary of the Borrower that is not a Credit Party, so long as any security interests required to be granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents or Section 8.12 in the Equity Interests of such Restricted Subsidiary shall remain in full force and effect, or as the case may be); and, be granted, and perfected and enforceable and all actions required to maintain or create said perfected status have been taken;
(xviiiq) each Dividends may be paid to the extent permitted by Section 9.03;
(r) the discount of the Borrower and its Subsidiaries mayInventory, accounts receivable or notes receivable in the ordinary course of businessbusiness or the conversion of accounts receivable to notes receivable may be made, licensein each case, as licensor consistent with past practices prior to the Closing Date;
(s) dispositions of receivables in connection with the compromise, settlement or licenseecollection thereof in the ordinary course of business or in bankruptcy or similar proceedings may be made;
(t) the Acquisition may be consummated; and
(u) Holdings may merge or consolidate with and into, patentsor be dissolved or liquidated into, trademarks, copyrights and know-how to any direct or from third Persons and to one another indirect parent of Holdings (“Parent”) so long as any (i) as a result of such license merger, consolidation, liquidation or dissolution, Parent shall directly own 100% of the Equity Interests of Borrower and (ii) concurrently with such merger, Parent signs a joinder to this Credit Agreement in form and substance reasonably satisfactory to the Agent (and pursuant to which Parent agrees to become “Holdings” hereunder and subject to all of the rights and obligations of Holdings hereunder), along with such other security documents as may be reasonably requested by the Borrower Agents, and otherwise complies with Section 8.12; provided that, for the avoidance of doubt, concurrent with such merger, consolidation or any other Credit Party in its capacity as licensor is permitted liquidation, all actions required to be assigned pursuant to give the Security Agreement (to the extent that the Collateral Agent a perfected security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting Equity Interests of a Lien by the Borrower or any other Credit Party pursuant shall have been taken, including, without limitation, that Parent has delivered to the Security Agreement Collateral Agent certificates, together with undated powers (or other documents of transfer acceptable to the Collateral Agent) endorsed in blank by Parent, representing the intellectual property covered by Equity Interests of the Borrower. For the avoidance of doubt, such licensetransaction shall not be deemed a “Change of Control”. To the extent the Required Banks Lenders waive the provisions of this Section 9.02 with respect to the sale sale, transfer or disposition of any Collateral, or any Collateral is sold sold, transferred or disposed of as permitted by this Section 9.02 (other than to the Borrower or a Subsidiary thereofCredit Party), such Collateral shall be sold sold, transferred or disposed of free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall be are hereby authorized and directed to take any actions deemed appropriate reasonably requested by the Borrower in order to effect or evidence the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries Subsidiary Guarantors to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter into any sale-lease-back leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.07permitted;
(ii) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete or worn outbusiness;
(iii) each of the Borrower and its Subsidiaries may sell obsolete, uneconomic or worn-out equipment or intellectual property in the ordinary course of business;
(iv) each of the Borrower and its Subsidiaries may sell other assets (other than the capital stock of any Subsidiary Guarantor and any Designated Hotel PropertyGuarantor), so long as (iv) no Default or Event of Default then exists or would result therefrom, (iiw) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iiix) at least 75% of the total consideration received by the Borrower or such Subsidiary is at least 90% cash and is paid at the time of the closing of such sale, (ivy) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f3.02(c) and (vz) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iiiiv) shall not exceed $20,000,000 5,000,000 in any fiscal year of the Borrower;
(ivv) each of the Borrower and its Subsidiaries Investments may sell the Designated Hotel Properties (other than pursuant to a sale-leaseback transaction), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and be made to the extent) required extent permitted by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i)7.05;
(vi) each of the Borrower and its Subsidiaries may sell all lease (as lessee) or a portion of their equity interests in the Existing Red Lion Joint Ventures, license (as licensee) real or personal property (so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are lease or license does not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on create a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer Capitalized Lease Obligation of the Borrower or another senior financial officer any of the Borrower, certifying its Subsidiary Guarantors except to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required extent permitted by this clause (viSection 7.04(iv));
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investmentdiscount, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction case without recourse and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84
(x) each of the Borrower and its Subsidiaries may lease (as lessee) real or personal property (so long as any such lease does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv));
(xi) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(xiiviii) the Transaction Disposition shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xiv) each of the Borrower and its Subsidiaries may enter into sale-lease-back transactions with respect to owned Hotel Properties (including the Designated Hotel Properties), so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xviix) each of the Borrower and its Subsidiaries may grant licenses, sublicenses, leases or sub-leases subleases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries, in each case so long as no such grant otherwise affects the Lender's security interest in the asset or property subject thereto (to the extent that a security interest is granted thereunder in such property);
(xviix) each any Subsidiary of the Borrower (i) may be merged or consolidated with or into the Borrower or liquidated so long as the Borrower is the surviving corporation of such merger or consolidation or the Borrower or a Subsidiary Guarantor thereof receives the assets of such Subsidiary upon such liquidation and (ii) may transfer its assets to the Borrower;
(xi) any Subsidiary of the Borrower (i) may be merged or consolidated with or into any other Subsidiary of the Borrower or liquidated so long as (A) in the case of any (x) such merger or consolidation involving a Subsidiary Guarantor, a Subsidiary Guarantor is the surviving corporation of such merger or consolidation or (y) such liquidation of a Subsidiary Guarantor, a Subsidiary Guarantor receives the assets of such Subsidiary upon such liquidation and (B) in the case of any (x) such merger or consoli- dation invoxxxxx x Wholly-Owned Subsidiary of the Borrower, in addition to the requirements of preceding clause (A)(x), a Wholly-Owned Subsidiary is the surviving corporation of such merger or consolidation or (y) such liquidation, in addition to the requirements of preceding clause (B)(y), a Wholly-Owned Subsidiary receives the assets of such Subsidiary upon such liquidation and (ii) may transfer its assets to any other Subsidiary of the Borrower, provided that if the transferor Subsidiary is a Subsidiary Guarantor, then such transfer must be to another Subsidiary Guarantor;
(xii) the Borrower may sell or otherwise transfer inventory to one or more of the Subsidiary Guarantors for resale by such Subsidiary Guarantors at fair market value;
(xiii) the Borrower may sell or otherwise transfer equipment, other fixed assets and intellectual property in the ordinary course of business to one or more of the Subsidiary Guarantors;
(xiv) the Borrower and its Subsidiaries may sell Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as each such sale is for cash and at fair market value (as determined in good faith by a purchase price no less than the Borrower or such Subsidiary, as the case may be)principal amount thereof plus any accrued and unpaid interest thereon; and
(xviiixv) each expenditures not to exceed $1,000,000 for repurchases of shares of UTC Common Stock on the Borrower and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and knowNASDAQ-how to or from third Persons and to one another so long as any such license by the Borrower or any other Credit Party in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that the security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any other Credit Party pursuant to the Security Agreement in the intellectual property covered by such licenseNMS are permitted. To the extent the Required Banks waive Lender waives the provisions of this Section 9.02 7.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 7.02 (other than to the Borrower or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Emcore Corp)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter into any sale-lease-back leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(ii) each of the Borrower and its Subsidiaries may in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete or worn out;
(iii) each of the Borrower and its Subsidiaries may sell assets (other than the capital stock of any Subsidiary Guarantor and any Designated Hotel PropertyGuarantor), so long as (iv) no Default or Event of Default then exists or would result therefrom, (iiw) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iiix) at least 7550% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iii) shall not exceed $20,000,000 in any fiscal year of the Borrower;
(iv) each of the Borrower and its Subsidiaries may sell the Designated Hotel Properties (other than pursuant to a sale-leaseback transaction), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Ventures, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and any other consideration received by the Borrower in connection with such sale is Qualified Proceeds, (ivy) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(i)4.02(e) and (z) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (ii) shall not exceed $5,000,000 in any fiscal year of the Borrower;
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ixiii) Investments may be made to the extent permitted by Section 9.05; -76- 84;
(xiv) each of the Borrower and its Subsidiaries may lease (as lessee) real or personal property (so long as any such lease does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv));
(xiv) each of the Borrower and its Subsidiaries may make sales sales, leases or other dispositions of inventory (including wireless messaging devices, regardless of whether the Borrower or such Subsidiary accounts for same as inventory or otherwise) in the ordinary course of business;
(xii) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xivvi) each of the Borrower and its Subsidiaries may enter into salesell obsolete, uneconomic or worn-lease-back transactions with respect to owned Hotel Properties (including out equipment or materials in the Designated Hotel Properties)ordinary course of business, so long as each such transaction (w) is for at least 75% in cash and is paid at provided that the time aggregate amount of the closing of such transaction, proceeds received from all assets sold pursuant to this clause (xvi) is at fair market value (as determined shall not exceed $10,000,000 in good faith by the Borrower or such Subsidiary, as the case may be), (y) all any fiscal year of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefromBorrower;
(xvvii) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash its Subsidiaries may sell or discount, in an aggregate amount for all such transactions not to exceed each case without recourse and in the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) compromise or collection thereof and (iii) in the case not as part of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred)financing transaction;
(xviviii) each of the Borrower and its Subsidiaries may grant leases or sub-leases subleases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(xviiix) each of the Borrower and its Subsidiaries may sell Cash Equivalents permitted to GTE Transaction shall be held by them pursuant to Section 9.05(ii) so long as each such sale is for cash and at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be)permitted; and
(xviiia) each any Wholly-Owned Subsidiary Guarantor of the Borrower and its Subsidiaries may, in (other than a License Subsidiary) may merge into the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one another Borrower (so long as any such license by the Borrower is the surviving corporation thereof) or with or into any other Credit Party Wholly-Owned Subsidiary Guarantor (other than a License Subsidiary) and (b) the Borrower and one or more Wholly-Owned Subsidiary Guarantors (other than a License Subsidiary) may sell or transfer assets to each other, in its capacity each case so long as licensor is permitted to be assigned the action or actions taken pursuant to this clause (ix) does not, or do not, adversely affect the Security Agreement (to the extent that Lenders or the security interest interests in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit assets or guarantees given in respect of the granting of a Lien by the Borrower or any other Credit Party pursuant to the Security Agreement in the intellectual property covered by such licenseObligations hereunder. To the extent the Required Banks Lenders waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 (other than to the Borrower or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter into any sale-lease-back leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(ii) each of the Borrower and its Subsidiaries may in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete or worn out;
(iii) each of the Borrower and its Subsidiaries may sell assets (other than the capital stock of any Subsidiary Guarantor and any Designated Hotel Property), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iii) shall not exceed $20,000,000 in any fiscal year of the Borrower;
(iv) each of the Borrower and its Subsidiaries may sell the Designated Hotel Properties (other than pursuant to a sale-sale- leaseback transaction), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Ventures, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84
(x) each of the Borrower and its Subsidiaries may lease (as lessee) real or personal property (so long as any such lease does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv));
(xi) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business;
(xii) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xiv) each of the Borrower and its Subsidiaries may enter into sale-lease-back transactions with respect to owned Hotel Properties (including the Designated Hotel Properties), so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xvi) each of the Borrower and its Subsidiaries may grant leases or sub-leases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(xvii) each of the Borrower and its Subsidiaries may sell Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as each such sale is for cash and at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be); and
(xviii) each of the Borrower and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one another so long as any such license by the Borrower or any other Credit Party in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that the security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any other Credit Party pursuant to the Security Agreement in the intellectual property covered by such license. To the extent the Required Banks waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 (other than to the Borrower or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.the
Appears in 1 contract
Samples: Credit Agreement (Doubletree Corp)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Parent and the Company will not, and will not permit any of its the Company’s Subsidiaries to, wind up, liquidate or dissolve its affairs or enter merge or consolidate into or with any transaction of merger or consolidationPerson, or convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter into any sale-lease-back leaseback transactions, or purchase or otherwise acquire an Acquired Entity or Business; except, that:
(in one or a series of related transactionsa) any part each of the property or assets (other than purchases or other acquisitions of inventory, materials Company and equipment its Subsidiaries may sell inventory in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(iib) each of the Borrower Company and its Subsidiaries may liquidate or otherwise dispose of obsolete or worn-out property in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete or worn outbusiness;
(iiic) Investments may be made to the extent permitted by Section 10.05;
(d) each of the Borrower Company and its Subsidiaries may sell assets (other than the capital stock including by way of any Subsidiary Guarantor and any Designated Hotel Property), merger or consolidation or in connection with Sale-Leaseback Transactions) so long as (i) no Default or Event of Default then exists has occurred and is continuing or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower Company or the respective Subsidiary receives at least fair market value (Fair Market Value as determined in good faith by the Borrower or such Subsidiary, as the case may be)Company, (iii) with respect to any such transaction in which the purchase price is in excess of $6,000,000, the consideration received by the Company or such Subsidiary consists of at least 75% of the total consideration received by the Borrower cash or such Subsidiary is cash and is Cash Equivalents paid at the time of the closing of such sale; provided, however, that for the purposes of this clause (iii), (A) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the Obligations or that is secured by Xxxxx that are subordinated to the Liens securing the Obligations or that are owed to the Company or any Subsidiary) of the Company or any Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or the notes thereto) that are assumed by the transferee of any such assets and for which the Company and/or its applicable Subsidiary have been validly released by all relevant creditors in writing, (B) the amount of any trade-in value that has been applied to the purchase price of any replacement assets acquired in connection with such disposition, (C) any securities received by the Company or any Subsidiary from such transferee that have been converted by such Person 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 and (D) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries in such sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (D) that is at such time outstanding, not to exceed the greater of (A)_$10,000,000 and (B) 10.0% of Consolidated EBITDA as of the last day of the most recent Test Period at 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, and (iv) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(f) and (v) the aggregate amount 5.02; provided, that no capital stock or other Equity Interests of the proceeds received from all assets any Subsidiary shall be sold pursuant to this clause (iiid), unless (A) shall all of the capital stock or other Equity Interests of such Subsidiary are sold in accordance with this clause (d) or (B) such sale is a sale of less than 100% of the capital stock or other Equity Interests of an Excluded Subsidiary; provided, that the aggregate Fair Market Value of all such sales of capital stock or other Equity Interests pursuant to this clause (B) does not exceed $20,000,000 in any fiscal year 2.5% of Consolidated Total Assets of the BorrowerCompany and its Subsidiaries as of the date of any such sale;
(ive) each of the Borrower and its Subsidiaries may sell the Designated Hotel Properties (other than pursuant to a sale-leaseback transaction), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Ventures, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84
(x) each of the Borrower Company and its Subsidiaries may lease (as lessee), sublease (as sublessee) or license (as licensee) real or personal property (so long as any such lease or license does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv10.04(d)); provided, that Parent and its Subsidiaries may not (i) exclusively license any of their Material Intellectual Property to non-Credit Parties or (ii) sell, contribute, transfer, assign or dispose of any of the Material Intellectual Property to Affiliates that are non-Credit Parties;
(xif) each of the Borrower Company and its Subsidiaries may make sales of inventory sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(xii) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xivg) each of the Borrower Company and its Subsidiaries may enter into sale-lease-back transactions grant licenses, sublicenses, leases or subleases (including with respect to owned Hotel Properties intellectual property, to the extent such license, sublicense, lease or sublease is non-exclusive) to other Persons in the ordinary course of business not materially interfering with the conduct of the business of the Company or any of its Subsidiaries;
(including h) the Designated Hotel Properties)Company or any Subsidiary of the Company may convey, sell or otherwise transfer all or any part of its business, properties and assets to any Borrower, so long as each such transaction (w) is any security interests granted to the Collateral Agent for at least 75% in cash and is paid at the time benefit of the closing of such transaction, Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiaryincluding, as the case may be), (y) all of as same may be replaced by the Net Sale Proceeds therefrom are applied as required by Section 4.02(ftransferee Borrower) and perfected (zto at least the same extent as in effect immediately prior to such transfer) no Default and all actions required to maintain or Event of Default then exists or would result therefromrenew said perfected status have been taken;
(xvi) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower Company may merge or consolidate with and into, or be dissolved or liquidated into, any Borrower, so long as (i) in the case of any such merger, consolidation, dissolution or liquidation involving the Company, the Company is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, (ii) in the case of any such merger, consolidation, dissolution or liquidation involving a Borrower, a Borrower is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, and (iii) all actions required to create or maintain perfected Liens in respect of assets required to be Collateral have been taken;
(j) Permitted Acquisitions may be consummated, including by way of merger or consolidation, in accordance with the requirements of Section 9.17;
(k) each of the Company and its Subsidiaries may liquidate or otherwise dispose of Cash Equivalents, in each case for cash or Cash Equivalents;
(l) Liens may be granted to the extent permitted by Section 10.01;
(m) any involuntary loss, damage or destruction of property and the disposition of the assets so damaged or destroyed shall be permitted;
(n) any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of use of property shall be permitted;
(o) the lapse, abandonment or cancellation of patents, trademarks and other intellectual property of the Company and its Subsidiaries shall be permitted in the reasonable business judgment of the Company or such Subsidiary, to the extent such intellectual property is not Material Intellectual Property;
(p) any Subsidiary of the Company that is not a Credit Party may be merged, consolidated or amalgamated with and into, or be dissolved or liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantorof the Company that is not a Credit Party, so long as any security interests required to be granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents or Section 9.12 in the Equity Interests of such Subsidiary shall remain in full force and effect, or as the case may be, be granted, and perfected and enforceable and all actions required to maintain or create said perfected status have been taken;
(q) Dividends may be paid to the extent permitted by Section 10.03;
(r) the discount of Inventory, accounts receivable or notes receivable in the ordinary course of business or the conversion of accounts receivable to notes receivable may be made, in each case, consistent with past practices prior to the Effective Date;
(s) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings may be made; and
(t) Parent may merge or consolidate with and into, or be dissolved or liquidated into, any direct or indirect parent of Parent (“New Parent”) so long as (i) as a result of such merger, consolidation, liquidation or dissolution, New Parent shall directly own 100% of the Borrower or Equity Interests of the respective Subsidiary Guarantor is the surviving corporation of any such transaction, Company and (ii) in the case of any concurrently with such transaction involving merger, New Parent signs a non-Wholly-Owned Subsidiary, the only consideration paid Joinder Agreement (and pursuant to third parties in connection therewith are shares of common stock which New Parent agrees to become “Parent” hereunder and subject to all of the Borrower rights and cash in an aggregate amount obligations of Parent hereunder) along with such other security documents as may be reasonably requested by the Agents or the Required Lenders, and otherwise complies with Section 9.12; provided, that, for all the avoidance of doubt, concurrent with such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between merger, consolidation or among the Borrower and the Subsidiary Guarantorsliquidation, all Liens granted pursuant actions required to give the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xvi) each of the Borrower and its Subsidiaries may grant leases or sub-leases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(xvii) each of the Borrower and its Subsidiaries may sell Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as each such sale is for cash and at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be); and
(xviii) each of the Borrower and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one another so long as any such license by the Borrower or any other Credit Party in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that the Collateral Agent a perfected security interest in such patentsthe Equity Interests of the Company shall have been taken, trademarksincluding, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any other Credit Party pursuant without limitation, that New Parent has delivered to the Security Agreement Collateral Agent certificates, together with undated powers (or other documents of transfer acceptable to the Collateral Agent) endorsed in blank by New Parent, representing the intellectual property covered by Equity Interests of the Company. For the avoidance of doubt, such licensetransaction shall not be deemed a “Change of Control”. To the extent the Required Banks Lenders waive the provisions of this Section 9.02 10.02 with respect to the sale sale, transfer or disposition of any Collateral, or any Collateral is sold sold, transferred or disposed of as permitted by this Section 9.02 10.02 (other than to the Borrower or a Subsidiary thereofCredit Party), such Collateral shall be sold sold, transferred or disposed of free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall be are hereby authorized and directed to take any actions deemed appropriate reasonably requested by the Borrowers in order to effect or evidence the foregoing; provided, that the Company has provided to the Administrative Agent and the Collateral Agent a certificate executed by an Authorized Officer of the Company certifying that the applicable sale, transfer or disposition is permitted by this Section 10.02 (and the Lenders hereby authorize and direct the Administrative Agent and the Collateral Agent to conclusively rely on such certificate in performing their obligations under this paragraph).
Appears in 1 contract
Samples: Abl Credit Agreement (J.Jill, Inc.)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind wind-up, liquidate or dissolve its any of their affairs or enter into any transaction of merger merger, amalgamation or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time without the Agent's prior written consent) all or any part of its property or assets, or enter into any sale-lease-back transactionsSale and Leaseback Transaction, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials materials, equipment and equipment intangible assets in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time)Person, except that:
(ia) Capital Expenditures by the each Borrower and its Subsidiaries shall be permitted to make Capital Expenditures to the extent not in violation of Section 9.079.1;
(iib) each of the Borrower and its Subsidiaries may may: (i) in the ordinary course of business business, sell, lease or otherwise dispose of any equipment or materials assets which, in the reasonable judgment of such Person, are obsolete obsolete, worn out or worn out;
otherwise no longer used or useful in the conduct of such Person's business; and (iiiii) each of the Borrower and its Subsidiaries may sell assets (other than the capital stock of any Subsidiary Guarantor and any Designated Hotel Property), so long as (i) no Default or Event of Default then or Unmatured Event of Default exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing respective sale of such saleassets or immediately after giving effect thereto, sell or 115 117 otherwise dispose of any assets or property (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) the aggregate amount which may include interests in Subsidiaries, provided that no part of the proceeds received from all assets Capital Stock of any Subsidiary may be sold pursuant to this clause (iiiii) unless all of the Capital Stock of the respective Subsidiary is sold pursuant to such sale) with a Fair Market Value not to exceed $5,000,000 in the aggregate during any Fiscal Year, provided that (A) the sale price with respect to each such Asset Disposition shall not exceed $20,000,000 be less than the Fair Market Value of such asset or assets sold, (B) at least eighty-five percent (85%) of such sale price shall be paid in Cash or Cash Equivalents (and treating as Cash for this purpose the trade-in or exchange value of any fiscal year item of equipment that is being sold to the Borrower;
(iv) each extent that a new item of the Borrower and its Subsidiaries may sell the Designated Hotel Properties (other than pursuant to a sale-leaseback equipment is being purchased as part of such transaction), so long as and (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (ivC) the Net Sale Proceeds therefrom from such sale or disposition are applied as (and to repay Loans to the extent) extent required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv4.4(c);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Ventures, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ixc) Investments may be made to the extent permitted by Section 9.05; -76- 848.8;
(xd) each of the Borrower and its Subsidiaries may lease enter into leases (as lessee) real or personal property (so long as any such lease does not create a in the ordinary course of business, including Capitalized Lease Obligation except Leases to the extent permitted by Section 9.04(iv)8.2(i);
(xie) each of the Borrower and its Subsidiaries may make sales or transfers of inventory in the ordinary course of business;
business and consistent with past practices; (xii) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xivf) each of the Borrower and its Subsidiaries may enter into sale-lease-back transactions with respect to owned Hotel Properties (including the Designated Hotel Properties), so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xvi) each of the Borrower and its Subsidiaries may grant leases or sub-leases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(xvii) each of the Borrower and its Subsidiaries may sell Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as or discount, in each such sale is for cash case without recourse and at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be); and
(xviii) each of the Borrower and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one another so long as any such license by the Borrower or any other Credit Party in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that the security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any other Credit Party pursuant to the Security Agreement accounts receivable arising in the intellectual property covered by ordinary course of business (x) which are overdue, or (y) which such license. To Borrower may reasonably determine are difficult to collect but only in connection with the extent the Required Banks waive the provisions of this Section 9.02 compromise or collection thereof consistent with respect to the sale customary industry practice (and not as part of any Collateral, bulk sale or any Collateral is sold as permitted by this Section 9.02 (other than to the Borrower or a Subsidiary thereoffinancing of receivables), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.;
Appears in 1 contract
Samples: Credit Agreement (Natg Holdings LLC)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its their Subsidiaries to, wind up, liquidate or dissolve its any of their affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time without the Agent's prior written consent) all or any part of its property or assets, or enter into any sale-lease-back transactionsSale and Leaseback Transaction, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials materials, equipment and equipment intangible assets in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time)Person, except that:
(ia) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to make Capital Expenditures the extent not in violation of Section 9.079.1;
(iib) each of the Borrower and its Subsidiaries may may: (i) in the ordinary course of business business, sell, lease or otherwise dispose of any equipment or materials assets which, in the reasonable judgment of such Person, are obsolete obsolete, worn out or worn out;
otherwise no longer used or useful in the conduct of such Person's business; (iiiii) each make other Asset Dispositions with respect to assets of the Borrower and its Subsidiaries may sell assets (other than the capital stock of any Subsidiary Guarantor and any Designated Hotel Property), so long as (i) no Default or Event of Default then exists or would result therefrom, for an aggregate consideration for all transactions permitted by this clause (ii) not in excess of $5,000,000, provided that each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives for at least the fair market value of such assets (as determined in good faith by a Responsible Officer of Borrower) (provided that all or any portion of the Borrower consideration for such sale may be in the form of the exchange of new or such Subsidiary, replacement property for the assets so sold so long as the case may befair market value of such newly acquired property and any cash received in such sale is at least equal to the fair market value of such assets sold), ; and (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such make any sale, lease, transfer or other disposition (ivor series 94 of related sales, leases, transfers or dispositions) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iii) shall not exceed $20,000,000 in any fiscal year of the Borrower;
(iv) each of the Borrower and its Subsidiaries may sell the Designated Hotel Properties (other than pursuant to having a sale-leaseback transaction), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value not in excess of $500,000 (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Responsible Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Ventures, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ixc) Investments may be made to the extent permitted by Section 9.05; -76- 848.8;
(xd) each of the Borrower and its Subsidiaries may lease enter into leases (as lessee) real or personal property (so long as any such lease does not create a Capitalized Lease Obligation except in the ordinary course of business to the extent permitted by Section 9.04(iv8.2(d) or 8.11(a));
(xie) each of the Borrower and its Subsidiaries may make sales or transfers of inventory in the ordinary course of businessbusiness and consistent with past practices;
(xiif) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xiv) each of the Borrower and its Subsidiaries may enter into sale-lease-back transactions with respect to owned Hotel Properties (including the Designated Hotel Properties), so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xvi) each of the Borrower and its Subsidiaries may grant leases or sub-leases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(xvii) each of the Borrower and its Subsidiaries may sell Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as or discount, in each such sale is for cash case without recourse and at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be); and
(xviii) each of the Borrower and its Subsidiaries may, in the ordinary course of business, licenseaccounts receivable arising in the ordinary course of business (x) which are overdue, or (y) which Borrower may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as licensor part of any bulk sale or licensee, patents, trademarks, copyrights financing of receivables);
(g) Borrower or any Subsidiary may enter into consignment arrangements (as consignor or as consignee) or similar arrangements for the sale of goods in the ordinary course of business and know-how consistent with the past practices of Borrower and its Subsidiaries prior to the Effective Date;
(h) Any Subsidiary of Borrower may merge or from third Persons and to one another consolidate with or into (i) Borrower so long as any such license by Borrower is the surviving Person or (ii) another Subsidiary of Borrower or any other so long as a Credit Party in is the surviving Person;
(i) each of Borrower and its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that the security interest in such patents, trademarks, copyrights Subsidiaries may acquire inventory and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any other Credit Party pursuant to the Security Agreement assets in the intellectual property covered by such license. To the extent the Required Banks waive the provisions ordinary course of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 (other than to the Borrower or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.business;
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind wind-up, liquidate or dissolve its any of their affairs or enter into any transaction of merger merger, amalgamation or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time without the Administrative Agent's prior written consent) all or any part of its property or assets, or enter into any sale-lease-back transactionsSale and Leaseback Transaction, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials materials, equipment and equipment intangible assets in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time)Person, except that:
(ia) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to make Capital Expenditures to the extent not in violation of Section 9.079.1;
(iib) each of the Borrower and its Subsidiaries may may: (i) in the ordinary course of business business, sell, lease or otherwise dispose of any equipment or materials assets which, in the reasonable judgment of such Person, are obsolete or worn out;
out and no longer used or useful in the conduct of such Person's business; and (iiiii) each of the Borrower and its Subsidiaries may sell assets (other than the capital stock of any Subsidiary Guarantor and any Designated Hotel Property), so long as (i) no Default or Event of Default then or Unmatured Event of Default exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing respective sale of such saleassets or immediately after giving effect thereto, sell or otherwise dispose of any assets or property (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) the aggregate amount which may include interests in Subsidiaries, provided that no part of the proceeds received from all assets Capital Stock of any Subsidiary may be sold pursuant to this clause (iiiii) unless all of the Capital Stock of the respective Subsidiary is sold pursuant to such sale) with a Fair Market Value not to exceed $2,000,000 in the aggregate from and after the Closing Date, provided that (A) the sale price with respect to each such Asset Disposition shall not exceed $20,000,000 be less than the Fair Market Value of such asset or assets sold, (B) at least 85% of such sale price shall be paid in Cash or Cash Equivalents (and treating as Cash for this purpose the trade in or exchange value of any fiscal year item of equipment that is being sold to the Borrower;
(iv) each extent that a new item of the Borrower and its Subsidiaries may sell the Designated Hotel Properties (other than pursuant to a sale-leaseback equipment is being purchased as part of such transaction), so long as and (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (ivC) the Net Sale Proceeds therefrom from such sale or disposition are applied as (and to repay Loans to the extent) extent required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv4.4(c);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Ventures, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ixc) Investments may be made to the extent permitted by Section 9.05; -76- 848.8;
(xd) each of the Borrower and its Subsidiaries may lease (i) enter into leases (as lessee) real or personal property (so long as any such lease does not create a Capitalized Lease Obligation except in the ordinary course of business to the extent permitted by Section 9.04(iv)8.2(d) or 8.11, and (ii) lease or license real or personal property (including Intellectual Property) in the ordinary course of business for periods not in excess of one (1) year (subject to automatic renewals);
(xie) each of the Borrower and its Subsidiaries may make sales or transfers of inventory and liquidate Cash Equivalents in the ordinary course of business and consistent with past practices;
(f) Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business (x) which are overdue, or (y) which Borrower may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(g) Any Subsidiary of Borrower may merge or consolidate with or into (i) Borrower so long as Borrower is the surviving Person or (ii) another Wholly-Owned Subsidiary of Borrower which is a Subsidiary Guarantor so long as a Wholly-Owned Subsidiary which is a Subsidiary Guarantor is the surviving Person;
(h) Borrower and its Subsidiaries may acquire inventory and other assets in the ordinary course of business;
(xiii) the Transaction shall Any Subsidiary of Borrower may be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xiv) each of the Borrower and its Subsidiaries may enter dissolved or liquidated into sale-lease-back transactions with respect to owned Hotel Properties (including the Designated Hotel Properties), so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all any Wholly-Owned Subsidiary of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) the Borrower may transfer any assets to which is a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge sell, lease, transfer or consolidate with and into, otherwise dispose of any or be liquidated into, or transfer any all of its assets to, the to Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares Subsidiary of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute which is a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred)Guarantor;
(xvij) each of the Borrower Holdings and its Subsidiaries may grant leases or sub-leases to other Persons not materially interfering with consummate the conduct Transactions as of the business of Closing Date pursuant to the Transaction Documents;
(k) Borrower or any of its Subsidiaries;
Subsidiaries may acquire (xviiother than through an unsolicited public offer) each assets constituting all or substantially all of a domestic business, business unit, division or product line of any Person not already a Subsidiary of a Borrower (a "Target") or all of the Capital Stock of any such Person organized in the United States (including any such acquisition by way of merger or consolidation) to the extent such acquired Person or the surviving entity of such merger or consolidation is or becomes a Credit Party and executes the Additional Security Documents and takes such other actions as are required in Section 7.12 (any such acquisition permitted by this clause (k) or otherwise consented to in writing by the Required Lenders, a "Permitted Acquisition"), provided that (i) no Event of Default or Unmatured Event of Default then exists (both before and after giving effect to such Permitted Acquisition), (ii) Borrower and its Subsidiaries may sell Cash Equivalents permitted shall be in compliance, on a pro forma basis after giving effect to be held by them such Permitted Acquisition, with the covenants contained in Article IX (with the Senior Leverage Ratio not exceeding 2.25 to 1.00) recomputed as of the last day of the most recently ended Fiscal Quarter of Borrower as if such Permitted Acquisition had occurred on the first day of each relevant period for testing such compliance, (iii) the business or Person acquired pursuant to Section 9.05(iisuch Permitted Acquisition is engaged in the same or substantially similar line of business as conducted by Borrower and its Subsidiaries as of the Closing Date, and such line of business is conducted in the United States, (iv) so long the business or Person acquired pursuant to such Permitted Acquisition had positive pro forma Consolidated EBITDA for the full twelve month period last ended prior to the consummation of such Permitted Acquisition, (v) the most recent drafts of all material documentation governing such Permitted Acquisition shall be delivered to Administrative Agent and its counsel in advance of the consummation of such Permitted Acquisition and shall be reasonably acceptable to Administrative Agent, (vi) the only consideration paid in connection with such Permitted Acquisition (including any deferred payments, whether in the form of purchase price adjustments, earn- out payments or otherwise) consists of cash, Parent Common Units and/or Parent Preferred Units (collectively, "Acquisition Consideration"), (vii) no more than $5,000,000 of the aggregate Acquisition Consideration consists of cash (provided such aggregate Acquisition Consideration consisting of cash may be increased to $10,000,000 if the Senior Leverage Ratio as each such sale of the last day of the most recent Fiscal Quarter is for cash and at fair market value less than 1.50 to 1.00), (viii) the aggregate amount of Acquisition Consideration (as such value, including future earn-out obligations, is determined in good faith by the board of directors of Borrower in a resolution delivered to Administrative Agent), together with any Indebtedness assumed or otherwise incurred in connection with such SubsidiaryPermitted Acquisition as permitted under Section 8.2, for all such Permitted Acquisitions shall not exceed $25,000,000, (ix) the Total Available Revolving Commitment is equal to or greater than $5,000,000 both before and immediately after giving effect to such Permitted Acquisition, and (x) Borrower deliver an officer's certificate to Administrative Agent certifying as to compliance with the requirements of this clause (k) and containing detailed calculations satisfactory to Administrative Agent required pursuant to clauses (ii), (iv), (vii), and (viii), above. Pro forma calculations made pursuant to clauses (ii) and (iv) above may include adjustments (the "Pro Forma Adjustments") to eliminate the effect of any non-recurring expenses or income with respect to Borrower and its Subsidiaries or any acquired Person or assets on Consolidated EBITDA, as determined reasonably and in good faith by the case chief financial officer of Borrower and approved by the board of directors of Holdings, as set forth in an officer's certificate delivered to Administrative Agent setting forth in reasonable detail the basis for such adjustments and reasonably acceptable by Administrative Agent;
(l) new Subsidiaries may be)be created in accordance with Section 8.16; and
(xviiim) each Borrower may consummate the Sprint Acquisition as of the Borrower and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one another so long as any such license by the Borrower or any other Credit Party in its capacity as licensor is permitted to be assigned Second Amendment Effective Date pursuant to the Security Agreement (to the extent that the security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any other Credit Party pursuant to the Security Agreement in the intellectual property covered by such license. To the extent the Required Banks waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 (other than to the Borrower or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Sprint Acquisition Documents, and the Administrative Agent and the Collateral Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (TNS Inc)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidationmerge, or consolidate, convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter into any sale-lease-back leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials materials, equipment and equipment intangible assets in the ordinary course of business) of any Person (any of the foregoing, a “Restricted Transaction”) (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.0710.07;
(ii) each of the Borrower and its Subsidiaries may in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete or worn out;
(iii) each of the Borrower and its Subsidiaries may sell assets (other than the capital stock of any Subsidiary Guarantor and any Designated Hotel Property), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iii) shall not exceed $20,000,000 in any fiscal year of the Borrower;
(iv) each of the Borrower and its Subsidiaries may sell the Designated Hotel Properties (other than pursuant to a sale-leaseback transaction), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Ventures, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84
(x) each of the Borrower and its Subsidiaries may lease (as lessee) real or personal property (so long as any such lease does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv));
(xi) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business;
(xiiiii) Investments may be made to the Transaction shall be permittedextent permitted by Section 10.05;
(xiiiiv) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xiv) each of the Borrower and its Subsidiaries may enter into sale-lease-back transactions with respect to owned Hotel Properties sell assets (including other than the Designated Hotel Properties)capital stock or other Equity Interests of any Subsidiary) after the Borrowing Date, so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
, (xvx) the Borrower may transfer any assets to a Subsidiary Guarantor, each such sale is in an arm’s-length transaction and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transactionreceives at least Fair Market Value, (iiy) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 5.02(e) and (z) the aggregate amount of the Net Sale Proceeds received from all assets sold pursuant to this clause (iv) shall not exceed $2,500,000 in any fiscal year of the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock Borrower;
(v) each of the Borrower and cash in an aggregate amount for all its Subsidiaries may lease (as lessee) or license (as licensee) real or personal property (so long as any such transactions lease or license does not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute create a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant Capitalized Lease Obligation except to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurredextent permitted by Section 10.04(iii));
(xvivi) each of the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(vii) each of the Borrower and its Subsidiaries may grant licenses, sublicenses, leases or sub-leases subleases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries, in each case so long as no such grant otherwise affects the Collateral Agent’s security interest in the asset or property subject thereto;
(xviiviii) each the Borrower or any Subsidiary of the Borrower may convey, lease, license, sell or otherwise transfer all or any part of its business, properties and assets to the Borrower or to any Subsidiary Guarantor, so long as any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer) and all actions required to maintain said perfected status have been or are concurrently taken;
(ix) any Subsidiary of the Borrower may merge or consolidate with and into, or be dissolved or liquidated into, the Borrower or any Subsidiary Guarantor, so long as (i) the Borrower or such Subsidiary Guarantor is the surviving or continuing corporation of any such merger or consolidation and (ii) any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, consolidation, dissolution or liquidation) and all actions required to maintain said perfected status have been or are concurrently taken;
(x) any Foreign Subsidiary of the Borrower may be merged, consolidated or amalgamated with and into, or be dissolved or liquidated into, or transfer any of its assets to, any Wholly-Owned Foreign Subsidiary of the Borrower, so long as (i) such Wholly-Owned Foreign Subsidiary of the Borrower is the surviving or continuing corporation of any such merger, consolidation or amalgamation and (ii) any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the Equity Interests of such Wholly-Owned Foreign Subsidiary and such Foreign Subsidiary shall remain in full force and effect and perfected and enforceable (to at least the same extent as in effect immediately prior to such merger, consolidation, amalgamation, dissolution, liquidation or transfer) and all actions required to maintain said perfected status have been or are concurrently taken;
(xi) Permitted Acquisitions may be made to the extent permitted by Section 9.16 (including by merger or consolidation);
(xii) the Borrower and its Subsidiaries may sell Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as each such sale is for cash and at fair market value (as determined in good faith by the Borrower sell, convey or such Subsidiary, as the case may be); and
(xviii) each otherwise dispose of the Borrower and its Subsidiaries may, obsolete or worn out property in the ordinary course of business;
(xiii) the Borrower and its Subsidiaries may sell, license, as licensor convey or licensee, patents, trademarks, copyrights otherwise dispose of cash and know-how Cash Equivalents in the ordinary course of business;
(xiv) any Subsidiary may sell or issue any of such Subsidiary’s Equity Interests to or from third Persons and to one another so long as any such license by the Borrower or any other Credit Party Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor;
(xv) the Borrower and its Subsidiaries may make (i) transfers of condemned property to the respective governmental authority or agency that has condemned same (whether by deed in lieu of condemnation or otherwise), and (ii) transfers of properties that have been subject to a casualty event to the respective insurer of such property or its capacity designee as licensor part of an insurance settlement;
(xvi) the Borrower and its Subsidiaries may enter into agreements to effect Restricted Transactions, so long as the respective Restricted Transaction is permitted to be assigned pursuant to the Security Agreement (other provisions of this Section 10.02; provided that notwithstanding the foregoing, the Borrower and its Subsidiaries may enter into agreements to the extent that the security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does effect Restricted Transactions not otherwise prohibit the granting of a Lien permitted by the Borrower provisions of this Section 10.02 if such agreement (or any other Credit Party agreement related thereto, the entering into of which, or the consummation of transactions contemplated thereunder, is a condition to the consummation of such Restricted Transaction, including, without limitation, agreements to obtain financing for such Restricted Transaction) shall require obtaining the requisite consent of the Required Lenders under this Agreement or the repayment of all obligations hereunder prior to the consummation of any such Restricted Transaction; and
(xvii) StayFriends GmbH may issue or sell its Equity Interests to T-Online International AG in connection with the exercise by T-Online International AG of its option to purchase such Equity Interests pursuant to the Security Agreement in existing option agreement between StayFriends GmbH and T-Online International AG, so long as the intellectual property covered Net Cash Proceeds therefrom are applied to repay Term Loans as, and to the extent, required by such licenseSection 5.02(c). To the extent the Required Banks Lenders waive the provisions of this Section 9.02 10.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 10.02 (other than to the Borrower or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall be authorized to take any actions deemed necessary or appropriate in order to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (United Online Inc)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Such Persons will not, and will not permit any of its their Subsidiaries to, (w) wind up, liquidate or dissolve its affairs their affairs, or (x) enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose (y) enter into any Disposition in respect of all or any part of its their property or assets, or enter into (including pursuant to any saleSale-lease-back transactionsLeaseback Transaction), or (z) purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials materials, supplies and equipment in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower Company and its Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(ii) each of Investments may be made to the Borrower and its Subsidiaries may in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete or worn outextent permitted by Section 9.05;
(iii) each of the Borrower Company and its Subsidiaries may sell property and assets (other than the capital stock Capital Stock of any Subsidiary Guarantor and any Designated Hotel PropertySubsidiary, accounts receivable, Xxxxxxx Vessels or Fishing Rights appurtenant thereto), so long as (iA) no Default or Event of Default then exists or would result therefrom, (iiB) each such sale is in an arm'sarm’s-length transaction and the Borrower Company or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be)value, (iiiC) at least 75% of the total consideration received by the Borrower Company or such Subsidiary is consists solely of cash and is paid in full at the time of the closing of such salesale (other than reasonable and customary holdbacks, which shall be paid no later than 90 days after such closing), (ivD) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) 5.01(c), and (vE) if there exists at the aggregate time of the closing of such sale an Interest Deferral Period, the amount of the proceeds so received, together with all other proceeds received from all assets sold pursuant to under this clause (iii) shall in such fiscal year, do not exceed $20,000,000 5,000,000, and if there exists at such time no Interest Deferral Period, the amount of proceeds so received, together with all other proceeds received under this clause (iii) in any such fiscal year of the Borroweryear, do not exceed $20,000,000;
(iv) each of the Borrower Company and its Subsidiaries may sell the Designated Hotel Properties enter into Sale-Leaseback Transactions of tangible property (other than pursuant to a sale-leaseback transaction), Xxxxxxx Vessels) so long as (iA) no Default or Event of Default then exists or would result therefrom, (iiB) each such sale transaction is in an arms'-length arm’s-length transaction and the Borrower Company or the respective Subsidiary receives at closing at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be)cash, (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (ivC) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)5.01(c), and (IID) unless otherwise permitted under clause (iii) of this Section 9.02, the Borrower shall have delivered to aggregate amount of gross proceeds so received from any such Sale-Leaseback Transaction, together with the Agents an officer's certificate executed gross proceeds of all other Sale-Leaseback Transactions received by the Chief Financial Officer Company and all of its Subsidiaries together after the Borrower or another senior financial officer of Effective Date, shall not exceed the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv)Sale-Leaseback Limit;
(v) RFS and RFS Sub may sell the RFS REIT Equity subject to the RFS REIT or to terms of any other Person (other than to the Borrower or a Subsidiary thereof)applicable Security Document, in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Ventures, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84
(x) each of the Borrower Company and its Subsidiaries may lease or charter (as lessee) or license (as licensee) real or personal property (so long as any such lease or license does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv9.04(iii));
(xivi) subject to the terms of any applicable Security Document, each of the Borrower Company and its Subsidiaries may make sales of inventory sell or discount to Persons other than Non-Credit Party Affiliates, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(xiivii) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted subject to the extent provided terms of any applicable Security Document, and other than in Section 9.07;
(xiv) respect of Vessels, or Fishing Rights, each of the Borrower and its Subsidiaries may enter into sale-lease-back transactions with respect to owned Hotel Properties (including the Designated Hotel Properties), so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xvi) each of the Borrower Company and its Subsidiaries may grant licenses, sublicenses, leases or sub-leases to other Persons subleases not materially interfering with the conduct of the business of the Borrower Company or any of its Subsidiaries, in each case so long as such grant is expressly subject to and does not otherwise impair or adversely affect the Senior Creditor Liens in the asset or property subject thereto;
(xviiviii) any Subsidiary of the Company may merge with and into, or be dissolved or liquidated into, the Company or any Wholly-Owned Domestic Subsidiary of the Company which is a Subsidiary Guarantor, so long as (A) in the case of any such merger, dissolution or liquidation involving the Company, the Company is the surviving entity of any such merger, dissolution or liquidation, (B) in all other cases, a Wholly-Owned Domestic Subsidiary which is a Subsidiary Guarantor is the surviving corporation of any such merger, dissolution or liquidation, (C) in all cases, the Senior Creditor Liens in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect or required to be in effect immediately prior to such merger, dissolution or liquidation), (D) in all cases, the then continuing or surviving Person shall have assumed all of the obligations of such Subsidiary, and (E) there exists at such time (both before and after giving effect thereto) no Default or Event of Default;
(ix) Permitted Acquisitions may be made to the extent permitted by Section 9.05;
(x) each of the Borrower Company and its Subsidiaries may sell make sales of inventory and Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as each such sale is for cash and at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be); and
(xviii) each of the Borrower and its Subsidiaries may, in the ordinary course of business;
(xi) each of the Company and its Subsidiaries may enter into Permitted Vessel Leases and Permitted Fishing Rights Leases;
(xii) the Company and its Subsidiaries may undertake Excluded Asset Dispositions; and
(xiii) any Subsidiary of the Company may sell, licenselease or otherwise transfer all or substantially all of its assets to the Company or to a Wholly-Owned Domestic Subsidiary of the Company that is a Subsidiary Guarantor, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one another so long as any the Senior Creditor Liens in such license by assets shall remain in full force and effect and perfected (to at least the Borrower same extent as in effect or any other Credit Party in its capacity as licensor is permitted required to be assigned pursuant in effect immediately prior to the Security Agreement (to the extent that the security interest in such patentssale, trademarks, copyrights and know-how is granted thereunderlease or other transfer) and does are not otherwise prohibit the granting of a Lien by the Borrower impaired or any other Credit Party pursuant affected thereby. Subject to the Security Agreement in the intellectual property covered by such license. To Section 16.01(d), to the extent the Required Banks Holders waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 (other than to the Borrower or a Subsidiary thereof)9.02, such Collateral shall be (unless otherwise specified herein or under the terms of any applicable waiver) sold free and clear of the Liens created by the Security Documents, provided that (a) in the event that the fair market value or book value of any Disposition or any series of related Dispositions undertaken to Non-Credit Party Affiliates after the Funding Date exceeds $1,000,000, the Company shall deliver to the Required Holders in connection with each such Disposition a certificate in form reasonably satisfactory to the Required Holders, executed by a Responsible Officer, certifying the fair market value of the assets involved, and the Administrative Agent satisfaction of any and all conditions set forth above, and (b) in the event that the fair market value or book value of any Disposition or any series of related Dispositions undertaken to Non-Credit Party Affiliates after the Funding Date exceeds $10,000,000, the Company shall provide in connection with each such Disposition (or series of related Dispositions) an opinion of an independent expert, reasonably qualified to provide such opinion, and having a national reputation, with respect to the fair market value of such assets; and the Collateral Administrative Agent shall be is hereby authorized by the Holders to take any actions deemed either of them may deem appropriate in order to effect evidence the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Parent will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any partnership, joint venture, or consummate a transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its property or assetsassets (other than sales of inventory in the ordinary course of business), or enter into any sale-lease-back leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower Borrowers and its their Subsidiaries shall be permitted to the extent not in violation of Section 9.078.07;
(ii) each of the Borrower Borrowers and its their Subsidiaries may liquidate or otherwise dispose of obsolete or worn-out property in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete or worn outbusiness;
(iii) each of Investments may be made to the Borrower extent permitted by Section 8.05;
(iv) the Borrowers and its their Subsidiaries may sell assets (other than the capital stock or other Equity Interests of any Wholly-Owned Subsidiary, unless all of the capital stock or other Equity Interests of such Wholly-Owned Subsidiary Guarantor and any Designated Hotel Propertyare sold in accordance with this clause (iv)), so long as (iv) no Default or Event of Default then exists or would result therefrom, (iiw) each such sale is in an arm'sarm’s-length transaction and the such Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be)Fair Market Value, (iiix) at least 75% of the total consideration received by the Borrower Borrowers or such Subsidiary is consists of at least 90% cash and is paid at the time of the closing of such sale, (ivy) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(f4.02(d) and (vz) the aggregate amount of the cash and non-cash proceeds received from all assets sold pursuant to this clause (iiiiv) shall not exceed $20,000,000 7,500,000 in any fiscal year of the Borrower;
Parent (iv) each of the Borrower and its Subsidiaries may sell the Designated Hotel Properties (other than pursuant to a sale-leaseback transaction), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing z), using the calculations (in reasonable detail) required by this clause (ivFair Market Value of property other than cash);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower Borrowers and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Ventures, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84
(x) each of the Borrower and its Subsidiaries may lease (as lessee) or license (as licensee) real or personal property (so long as any such lease or license does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv8.04(iv));
(xivi) each of the Borrower Borrowers and its their Subsidiaries may make sales of inventory sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(xii) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xivvii) each of the Borrower Borrowers and its Subsidiaries may enter into sale-lease-back transactions with respect to owned Hotel Properties (including the Designated Hotel Properties), so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xvi) each of the Borrower and its their Subsidiaries may grant licenses, sublicenses, leases or sub-leases subleases to other Persons not materially interfering with the conduct of the business of the Borrowers or any of their Subsidiaries, in each case so long as no such grant otherwise affects the Collateral Agent’s security interest in the asset or property subject thereto;
(viii) (a) any Credit Party may convey, sell or otherwise transfer all or any part of its business, properties and assets to another Credit Party, so long as any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer) and all actions required to maintain said perfected status have been taken, (b) any Credit Party may convey, sell or otherwise transfer all or any part of its business, properties and assets to a Foreign Subsidiary provided that the Fair Market Value of such business, properties and assets shall not exceed $1,000,000 in any fiscal year and (c) any Foreign Subsidiary may convey, sell or otherwise transfer all or any part of its business, properties and assets to a Credit Party.
(ix) any Subsidiary of a Borrower may merge or consolidate with and into, or be dissolved or liquidated into, such Borrower or any Wholly-Owned Domestic Subsidiary of its Subsidiariessuch Borrower which is a Subsidiary Guarantor, so long as (i) in the case of any such merger, consolidation, dissolution or liquidation involving such Borrower, such Borrower is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, (ii) in all other cases, a Wholly-Owned Domestic Subsidiary of such Borrower which is a Subsidiary Guarantor is the surviving or continuing corporation of any such merger, consolidation, dissolution or liquidation, and (iii) any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, consolidation, dissolution or liquidation) and all actions required to maintain said perfected status have been taken;
(xviix) each any Foreign Subsidiary of the a Borrower may be merged, consolidated or amalgamated with and into, or be dissolved or liquidated into, or transfer any of its Subsidiaries may sell Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) assets to, any Wholly-Owned Foreign Subsidiary of a Borrower, so long as each (i) such sale Wholly-Owned Foreign Subsidiary of a Borrower is the surviving or continuing entity of any such merger, consolidation, amalgamation, dissolution or liquidation and (ii) any security interests granted to the Collateral Agent for cash the benefit of the Secured Creditors pursuant to the Security Documents in the Equity Interests of such Wholly-Owned Foreign Subsidiary and such Foreign Subsidiary shall remain in full force and effect and perfected and enforceable (to at fair market value least the same extent as in effect immediately prior to such merger, consolidation, amalgamation, dissolution, liquidation or transfer) and all actions required to maintain said perfected status have been taken;
(as determined xi) Permitted Acquisitions may be consummated in good faith by accordance with the Borrower or such Subsidiary, as the case may be)requirements of Section 7.15; and
(xviiixii) each the Borrowers and their Subsidiaries may liquidate or otherwise dispose of the Borrower and its Subsidiaries may, Cash Equivalents in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one another so long as any such license by the Borrower or any other Credit Party in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that the security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any other Credit Party pursuant to the Security Agreement in the intellectual property covered by such licenseeach case for cash at Fair Market Value. To the extent the Required Banks Lenders waive the provisions of this Section 9.02 8.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 8.02 (other than to the Borrower Parent or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Parent will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease lease, charter or otherwise dispose of all or any part of its property or assets, or any of the Collateral or enter into any sale-lease-back leaseback transactions, or purchase purchase, lease, charter or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
(i) (x) Investments by the Parent and its Subsidiaries shall be permitted in accordance with Section 9.05 and (y) Capital Expenditures by the Borrower and its Subsidiaries of the Parent shall be permitted to the extent not in violation of Section 9.07;
(ii) each the Subsidiaries of the Borrower and its Subsidiaries may in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete or worn out;
(iii) each of the Borrower and its Subsidiaries Parent may sell assets any Vessels (other than the capital stock of any Subsidiary Guarantor and any Designated Hotel Propertyrelated equipment and spare parts), so long as provided that (iv) no Default or Event of Default is then exists in existence or would result therefromfrom each such sale, (iiw) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives made at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iii) shall not exceed $20,000,000 in any fiscal year of the Borrower;
(iv) each of the Borrower and its Subsidiaries may sell the Designated Hotel Properties (other than pursuant to a sale-leaseback transaction), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined (A) in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and case of Collateral Vessels, in accordance with the appraisal report most recently delivered to the extentAdministrative Agent (or obtained by the Administrative Agent) required by pursuant to Section 4.02(i);
8.01(c) or (viB) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Venturescase of other Vessels, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower chief executive officer or the chief financial officer of the Parent), (x) 100% of the consideration in respect of each such Subsidiarysale shall consist of cash or Cash Equivalents received by the respective Subsidiary of the Parent which owned such Vessel on the date of consummation of each such sale, (y) the Net Cash Proceeds of each such sale of Collateral Vessels shall be applied as required by Sections 4.02(a) and 4.02(b) (if applicable) to repay outstanding Revolving Loans (after giving effect to any required reduction to the Total Revolving Loan Commitment pursuant to Section 3.03(c)), and (z) the Parent shall have delivered to the Administrative Agent an officer’s certificate, certified by the chief financial officer of the Parent, (I) certifying that preceding clauses (v) through (y) of this Section 9.02(ii) have been or will be satisfied, and (II) in the case of each sale pursuant to which the aggregate consideration to be received by such Subsidiary of the Parent is $1,000,000 or more, (A) demonstrating pro forma compliance (after giving effect to such disposition and, in the case of calculations involving the appraised value of Collateral Vessels or other Vessels, using valuations consistent with the appraisal report most recently delivered to the Administrative Agent (or obtained by the Administrative Agent) pursuant to Section 8.01(c) in the case of Collateral Vessels or consistent with the determination of the Parent’s chief executive officer or chief financial officer, as the case may be), (iiiin the case of other Vessels) at least 75% with each of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained set forth in Sections 9.08 through 9.119.12, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereofinclusive, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period Test Period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale sale, as applicable) and (ivB) demonstrating projected compliance with each of the covenants set forth in Sections 9.08 through 9.12, inclusive, for the one year period following such disposition, in each case of a sale of an equity interest setting forth the calculations required to make such determination in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i)reasonable detail;
(viiiiii) each any Subsidiary of the Borrower Parent (and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made the Parent solely pursuant to the extent permitted by Section 9.05; -76- 84
(xPetrobras Charter) each of the Borrower and its Subsidiaries may lease (as lessee) or license (as licensee) real or personal property (so long as any such lease or license does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv)); provided, however, except as provided in Section 9.02(vii), in the case of any demise, bareboat, time, voyage or other charter or lease arrangement pursuant to which any such Subsidiary (or the Parent pursuant to the Petrobras Charter) acts as lessee, the term thereof shall be no longer than one year unless (w) such arrangement exists between one Subsidiary of the Parent on one hand and another Subsidiary of the Parent on the other hand and such Subsidiary of the Parent that is acting as lessee has entered into a "charter-out" arrangement with a third party in respect of the Vessel subject to such arrangement, (x) such arrangement exists in connection with the Petrobras Charter, (y) such arrangement exists between the Title XI Subsidiary on one hand and another Subsidiary of the Parent on the other hand or (z) such arrangement exists between the Borrowers;
(xiiv) each any Subsidiary of the Borrower Parent may sell or discount, in each case without recourse and its Subsidiaries may make sales of inventory in the ordinary course of business, 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 as part of any bulk sale or financing transaction);
(xiiv) any Subsidiary of the Transaction shall be permittedParent (other than the Borrowers) may sell or otherwise transfer all or any part of its business, properties or assets to either Borrower or any Subsidiary Guarantor, in each case so long as all actions necessary or desirable to preserve, protect and maintain the security interest and Lien of the Collateral Agent in any Collateral involved in any such transaction are taken to the satisfaction of the Collateral Agent;
(xiiivi) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xiv) each any Subsidiary of the Borrower Parent (other than the Borrowers) may merge with and its Subsidiaries may enter into sale-lease-back transactions with respect to owned Hotel Properties (including into, or be dissolved or liquidated into, either Borrower, any Subsidiary Guarantor or any other Subsidiary of the Designated Hotel Properties)Parent, so long as each such transaction (w) in the case of any such merger, dissolution or liquidation involving either Borrower, such Borrower is the surviving corporation of any such merger, dissolution or liquidation, (x) except as provided in preceding clause (w), in the cases of any such merger, dissolution or liquidation involving a Subsidiary Guarantor, a Subsidiary Guarantor is the surviving corporation of any such merger, dissolution or liquidation, (y) in the case of any such merger, dissolution or liquidation involving Subsidiaries of the Parent that are not Credit Parties, a Subsidiary of the Parent is the surviving corporation of any such merger, dissolution or liquidation, and (z) in all cases, the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents shall remain in full force and effect and perfected (to at least 75the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(vii) Trico Operators may consummate the sale/leaseback transactions described in the GECC Lease Documents (as in effect on the Effective Date) in accordance with the terms of the GECC Lease Documents (as in effect on the Effective Date);
(viii) any Subsidiary of the Parent may enter into demise, bareboat, time, voyage and other charter or lease arrangements pursuant to which any such Subsidiary charters or leases out a Vessel to another Subsidiary of the Parent or to a third Person, in each case so long as (x) such arrangements are entered into in the ordinary course of business and consistent with past practices, (y) such arrangements do not materially impair the value of the Vessel or Vessels subject to such arrangements and (z) such arrangements involving any Collateral Vessels do not impair the security interest of the Collateral Agent in such Collateral Vessels (or the ability of the Collateral Agent to foreclose on each Collateral Vessel or exercise its remedies in respect thereof, in each case free of such arrangements) and such arrangements are subject in all respects to the Collateral Agent’s Lien on such Collateral Vessels;
(ix) any Foreign Subsidiary of the Parent that is not a Credit Party may sell or otherwise transfer all or any part of its business, properties or assets to any Wholly-Owned Foreign Subsidiary of the Parent;
(x) any Subsidiary of the Parent may (A) sell obsolete, uneconomic or worn-out equipment or materials in the ordinary course of business and (B) sell assets (other than Vessels) to the extent not otherwise permitted by this Section 9.02, provided that (I) 100% of the consideration received by such Subsidiary of the Parent is in the form of cash and which is paid received at the time of the closing of each such transactionsale, (xII) such assets are sold in the ordinary course of business and (III) the aggregate sale proceeds from all assets subject to sales permitted by this Section 9.02(x)(B) shall not exceed $500,000 in any fiscal year of the Parent; and
(xi) the Subsidiaries of the Parent may sell their respective interests in any Joint Venture or Subsidiary which owns an interest in the Brazilian AHTS Project, provided that (I) in no event, however, shall any such sale consist of shares of equity in any Credit Party, (II) 100% of the consideration received by such Subsidiary of the Parent is in the form of cash which is received at the time of each such sale and (III) such interests are sold at fair market value (as determined in good faith by the Borrower chief executive officer or such Subsidiary, as the case may be), (y) all chief financial officer of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurredParent);
(xvi) each of the Borrower and its Subsidiaries may grant leases or sub-leases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(xvii) each of the Borrower and its Subsidiaries may sell Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as each such sale is for cash and at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be); and
(xviii) each of the Borrower and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one another so long as any such license by the Borrower or any other Credit Party in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that the security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any other Credit Party pursuant to the Security Agreement in the intellectual property covered by such license. To the extent the Required Banks Lenders waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 9.02, such Collateral (other than unless sold to the either Borrower or a Subsidiary thereof), such Collateral of either Borrower) shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing. Notwithstanding anything to the contrary contained above in this Section 9.02, in no event shall the Parent of any of its Subsidiaries sell, lease or otherwise dispose of assets otherwise permitted under this Section 9.02 that, in the aggregate, constitute all or any substantial part of the assets of the Parent and its Subsidiaries taken as a whole, provided that this sentence shall not apply to sales, leases and other dispositions otherwise permitted pursuant to Sections 9.02(v), (vi), (viii) and (ix).
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter into any sale-lease-back leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(ii) each of Investments may be made to the Borrower and its Subsidiaries may in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete or worn outextent permitted by Section 9.05;
(iii) each of the Borrower and its Subsidiaries may sell assets (other than the capital stock of any Subsidiary Guarantor and any Designated Hotel Property)assets, so long as (iu) no Default or Event of Default then exists or would result therefrom, (iiw) each such sale is in an arm'sarm’s-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iiix) at least 75% of the total consideration received by the Borrower or such Subsidiary is shall be in the form of cash (taking into account the amount of cash, the principal amount of any promissory notes and the fair market value, as determined by the Borrower in good faith, of any other consideration) and is paid at the time of the closing of such sale, (ivy) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f4.02(e) and (vz) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iii) shall not exceed $20,000,000 5,000,000 in any fiscal year of the Borrower;
(iv) each of the Borrower and its Subsidiaries may lease (as lessee) or license (as licensee) real or personal property (so long as any such lease or license does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iii));
(v) each of the Borrower and its Subsidiaries may sell or discount, in each case in the Designated Hotel Properties ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(vi) each of the Borrower and its Subsidiaries may grant licenses, sublicenses, leases or subleases to other than pursuant to Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries, in each case so long as no such grant otherwise affects the Collateral Agent’s security interest in the asset or property subject thereto;
(vii) any Subsidiary of the Borrower may (x) merge or consolidate with and into, the Borrower or any Wholly-Owned Domestic Subsidiary of the Borrower which is a sale-leaseback transaction)Subsidiary Guarantor, so long as (i) in the case of any such merger, involving the Borrower, the Borrower is the surviving corporation of any such merger, (ii) in all other cases, the Wholly-Owned Domestic Subsidiary which is a Subsidiary Guarantor is the surviving corporation of any such merger, (iii) in all cases, the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger) and (iv) in all cases, the then continuing or surviving corporation shall have assumed all of the obligations of such Subsidiary, (y) if such Subsidiary is a Foreign Subsidiary, merge or consolidate with and into another Foreign Subsidiary or (z) be dissolved or liquidated into the Borrower or such Subsidiary’s direct parent Subsidiary, so long as (i) the security interests (if any) granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such dissolved or liquidated Subsidiary shall remain in full force and effect and perfected (with respect to the parent Subsidiary) to at least the same extent in effect immediately prior to such dissolution or liquidation and (ii) if the dissolved or liquidated Subsidiary was not a Credit Party, but the Person into which it is dissolved or liquidated is a Credit Party, any actions required by Section 8.12 or the terms of the Security Document to which such Person (into which the respective Subsidiary was dissolved or liquidated) is a party shall be taken in accordance with the relevant requirements thereof;
(viii) Permitted Acquisitions may be made to the extent permitted by Section 8.15, and the Borrower or a Subsidiary Guarantor may permit another Person to merge into or consolidate with it in order to effect a Permitted Acquisition;
(ix) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business;
(x) each of the Borrower and its Subsidiaries may sell or otherwise dispose of outdated, surplus or worn out property (other than Real Property), so long as, in each case, disposed of in the ordinary course of business;
(xi) sales, transfers or dispositions by the Borrower or any of its Subsidiaries of non-strategic assets purchased as part of a Permitted Acquisition, so long as (t) no Default or Event of Default then exists or would result therefrom, (iiu) each such sale sale, transfer or disposition is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Ventures, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm'sarm’s-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iiiv) at least 7585% of the total consideration received by the Borrower or such Subsidiary is and its Subsidiaries shall be in the form of cash (taking into account the amount of cash, the principal amount of any promissory note and the fair market value, as determined by the Borrower in good faith, of any other consideration and is paid at the time of the closing of such sale and sale, (ivw) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i4.02(e), (x) the aggregate proceeds (determined in a manner consistent with clause (v) above) received by the Borrower or such Subsidiary) from all such sales, transfers or dispositions relating to a given Permitted Acquisition shall not exceed 30% of the aggregate consideration paid for such Permitted Acquisition, (y) calculations are made by the Borrower with respect to the financial covenants contained in Sections 9.08 and 9.09 for the respective Calculation Period on a Pro forma Basis as if the respective Permitted Acquisition (as well as all other Permitted Acquisitions thereto consummated after the first day of such Calculation Period), in each case after giving effect to all sales, transfers or dispositions of assets consummated pursuant to this clause (xi), had occurred on the first day of such Calculation Period, and such calculation shall show that such financial covenants would have been complied with if the Permitted Acquisition and the subsequent sale, transfer or disposition of assets consummated pursuant to this clause (xi) had each occurred on the first day of such Calculation Period, and (z) such non-strategic assets are sold, transferred or disposed of on or prior to the first anniversary of the respective Permitted Acquisition;
(viiixii) in order to effect a sale, transfer or disposition otherwise permitted by this Section 9.02, a Subsidiary of the Borrower may be merged or consolidated with or into another Person, or may be dissolved or liquidated; and
(xiii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05effect Sale-Leaseback Transactions; -76- 84
provided that (x) each the aggregate amount of all proceeds received by the Borrower and its Subsidiaries may lease (as lessee) real or personal property (so long as any such lease does from all Sale-Leaseback Transactions consummated on and after the Effective Date shall not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv));
(xi) each of the Borrower exceed $2,000,000 and its Subsidiaries may make sales of inventory in the ordinary course of business;
(xii) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xiv) each of the Borrower and its Subsidiaries may enter into sale-lease-back transactions with respect to owned Hotel Properties (including the Designated Hotel Properties), so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied to repay Term Loans as required provided in Section 4.02(e) or reinvested or retained to the extent permitted by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) 4.02(e). Notwithstanding anything to the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantorcontrary contained above in this Section 9.02, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved no event shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xvi) each of the Borrower and its Subsidiaries may grant leases or sub-leases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries (x) sell any Equity Interests in any Subsidiary of the Borrower unless 100% of the Equity Interests of such Subsidiary (and any of its Subsidiaries;
) owned by the Borrower and its other Subsidiaries are sold or otherwise transferred pursuant thereto (xviiin a transaction otherwise meeting the foregoing requirements of this Section 9.02) each of and, after giving effect thereto, the Borrower and its Subsidiaries may sell Cash Equivalents shall owe no Indebtedness to such Person or any of such Person’s Subsidiaries (unless the amount thereof would be permitted to be held by them pursuant to Section 9.05(ii9.04 after giving effect to the change in status of such Person from a Subsidiary to a non-Subsidiary) so long as each such sale is for cash and at fair market value (as determined in good faith any remaining Investments by the Borrower or such Subsidiary, as the case may be); and
(xviii) each of the Borrower and its Subsidiaries may, in and such Person and its Subsidiaries after the ordinary course sale of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one another so long as any such license by the Borrower or any other Credit Party in its capacity as licensor is permitted all Equity Interests therein shall be required to be assigned justified on such date pursuant to clause (xiii) of Section 9.05 after giving effect to the Security Agreement change in status of such Person from a Subsidiary to a non-Subsidiary (to the extent that the security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does same were not otherwise prohibit the granting of a Lien by the Borrower or any other Credit Party previously justified pursuant to the Security Agreement in the intellectual property covered by such licensesaid clause) or (y) enter into any sale-lease back transactions other than as permitted pursuant to Section 9.02(xiii). To the extent the Required Banks Lenders waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 (other than to the Borrower Holdings or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall, and shall be authorized to to, take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Bway Corp)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Restricted Subsidiaries to, wind up, liquidate or dissolve its affairs or enter merge or consolidate into or with any transaction of merger or consolidationPerson, or convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter into any sale-lease-back leaseback transactions, or purchase or otherwise acquire (in one an Acquired Entity or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time)Business, except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(iia) each of the Borrower and its Restricted Subsidiaries may sell inventory in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete or worn out;business; 104
(iiib) each of the Borrower and its Restricted Subsidiaries may liquidate or otherwise dispose of obsolete or worn-out property in the ordinary course of business;
(c) Investments may be made to the extent permitted by Section 9.05;
(d) each of the Borrower and its Restricted Subsidiaries may sell assets (other than the capital stock including by way of any Subsidiary Guarantor and any Designated Hotel Property), merger or consolidation or in connection with sale-leaseback transactions) so long as (i) no Default or Event of Default then exists has occurred and is continuing or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Restricted Subsidiary receives at least fair market value (Fair Market Value as determined in good faith by the Borrower or such Subsidiary, as the case may be)Borrower, (iii) at least 75% with respect to any such transaction in which the purchase price is in excess of $3,000,000, the total consideration received by the Borrower or such Restricted Subsidiary is consists of at least 75% cash and is or Cash Equivalents paid at the time of the closing of such sale; provided, however, that for the purposes of this clause (iii), (w) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the Obligations or that are owed to the Borrower or any Restricted Subsidiary) of the Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or the notes thereto) that are assumed by the transferee of any such assets and for which the Borrower and/or its applicable Restricted Subsidiary have been validly released by all relevant creditors in writing, (x) the amount of any trade-in value applied to the purchase price of any replacement asses acquired in connection with such disposition, (y) any securities received by the Borrower or any Restricted Subsidiary from such transferee that are converted by such Person 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 and (z) any Designated Non-Cash Consideration received by the Borrower or any of its Restricted Subsidiaries in such sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at such time outstanding, not to exceed the greater of (x) $7,500,000 and (y) 10.0% of Consolidated EBITDA as of the last day of the most recent Test Period at 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, and (iv) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(f) and (v) the aggregate amount 4.02(c); provided that no capital stock or other Equity Interests of the proceeds received from all assets any Restricted Subsidiary shall be sold pursuant to this clause (iiid), unless (1) shall all of the capital stock or other Equity Interests of such Restricted Subsidiary are sold in accordance with this clause (d) or (2) such sale is a sale of less than 100% of the capital stock or other Equity Interests of an Excluded Subsidiary; provided that the aggregate Fair Market Value of all such sales of capital stock or other Equity Interests pursuant to this clause (2) does not exceed $20,000,000 in any fiscal year 2.5% of Consolidated Total Assets of the BorrowerBorrower and its Restricted Subsidiaries as of the date of any such sale;
(ive) each of the Borrower and its Subsidiaries may sell the Designated Hotel Properties (other than pursuant to a sale-leaseback transaction), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Ventures, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84
(x) each of the Borrower and its Restricted Subsidiaries may lease (as lessee), sublease (as sublessee) or license (as licensee) real or personal property (so long as any such lease or license does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv9.04(d));; 105
(xif) each of the Borrower and its Restricted Subsidiaries may make sales of inventory sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(xii) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xivg) each of the Borrower and its Restricted Subsidiaries may enter into sale-lease-back transactions grant licenses, sublicenses, leases or subleases (including with respect to owned Hotel Properties (including intellectual property, to the Designated Hotel Properties)extent such license, so long as each such transaction (w) sublicense, lease or sublease is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xvexclusive) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xvi) each of the Borrower and its Subsidiaries may grant leases or sub-leases to other Persons in the ordinary course of business not materially interfering with the conduct of the business of the Borrower or any of its Restricted Subsidiaries;
(xviih) the Borrower or any Restricted Subsidiary of the Borrower may convey, sell or otherwise transfer all or any part of its business, properties and assets to any Qualified Credit Party, so long as any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect (including, as the case may be, as same may be replaced by the transferee Qualified Credit Party) and perfected (to at least the same extent as in effect immediately prior to such transfer) and all actions required to maintain or renew said perfected status have been taken;
(i) any Restricted Subsidiary of the Borrower may merge or consolidate with and into, or be dissolved or liquidated into, any Qualified Credit Party, so long as (i) in the case of any such merger, consolidation, dissolution or liquidation involving the Borrower, the Borrower is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, (ii) in the case of any such merger, consolidation, dissolution or liquidation involving a Credit Party, a Credit Party is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, and (iii) all actions required to create or maintain perfected Liens in respect of assets required to be Collateral have been taken;
(j) Permitted Acquisitions may be consummated, including by way of merger or consolidation, in accordance with the requirements of Section 8.13;
(k) each of the Borrower and its Restricted Subsidiaries may sell liquidate or otherwise dispose of Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as Equivalents, in each such sale is case for cash or Cash Equivalents;
(l) Liens may be granted to the extent permitted by Section 9.01;
(m) any involuntary loss, damage or destruction of property and at fair market value the disposition of the assets so damaged or destroyed shall be permitted;
(as determined n) any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of use of property shall be permitted;
(o) the lapse, abandonment or cancellation of registered or pending patents, trademarks and other intellectual property of the Borrower and its Restricted Subsidiaries shall be permitted in good faith by the reasonable business judgment of the Borrower or such Restricted Subsidiary;
(p) any Restricted Subsidiary of the Borrower that is not a Credit Party may be merged, consolidated or amalgamated with and into, or be dissolved or liquidated into, or 106 transfer any of its assets to, any Restricted Subsidiary of the Borrower that is not a Credit Party, so long as any security interests required to be granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents or Section 8.12 in the Equity Interests of such Restricted Subsidiary shall remain in full force and effect, or as the case may be); and, be granted, and perfected and enforceable and all actions required to maintain or create said perfected status have been taken;
(xviiiq) each Dividends may be paid to the extent permitted by Section 9.03;
(r) the discount of the Borrower and its Subsidiaries mayInventory, accounts receivable or notes receivable in the ordinary course of businessbusiness or the conversion of accounts receivable to notes receivable may be made, licensein each case, as licensor consistent with past practices prior to the Closing Date;
(s) dispositions of receivables in connection with the compromise, settlement or licenseecollection thereof in the ordinary course of business or in bankruptcy or similar proceedings may be made;
(t) the Acquisition may be consummated; and
(u) Holdings may merge or consolidate with and into, patentsor be dissolved or liquidated into, trademarks, copyrights and know-how to any direct or from third Persons and to one another indirect parent of Holdings (“Parent”) so long as any (i) as a result of such license merger, consolidation, liquidation or dissolution, Parent shall directly own 100% of the Equity Interests of Borrower and (ii) concurrently with such merger, Parent signs a joinder to this Credit Agreement in form and substance reasonably satisfactory to the Agent (and pursuant to which Parent agrees to become “Holdings” hereunder and subject to all of the rights and obligations of Holdings hereunder), along with such other security documents as may be reasonably requested by the Borrower Agents, and otherwise complies with Section 8.12; provided that, for the avoidance of doubt, concurrent with such merger, consolidation or any other Credit Party in its capacity as licensor is permitted liquidation, all actions required to be assigned pursuant to give the Security Agreement (to the extent that the Collateral Agent a perfected security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting Equity Interests of a Lien by the Borrower or any other Credit Party pursuant shall have been taken, including, without limitation, that Parent has delivered to the Security Agreement Collateral Agent certificates, together with undated powers (or other documents of transfer acceptable to the Collateral Agent) endorsed in blank by Parent, representing the intellectual property covered by Equity Interests of the Borrower. For the avoidance of doubt, such licensetransaction shall not be deemed a “Change of Control”. To the extent the Required Banks Lenders waive the provisions of this Section 9.02 with respect to the sale sale, transfer or disposition of any Collateral, or any Collateral is sold sold, transferred or disposed of as permitted by this Section 9.02 (other than to the Borrower or a Subsidiary thereofCredit Party), such Collateral shall be sold sold, transferred or disposed of free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall be are hereby authorized and directed to take any actions deemed appropriate reasonably requested by the Borrower in order to effect or evidence the foregoing.
Appears in 1 contract
Samples: Term Loan Credit Agreement
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter merge or consolidate into or with any transaction of merger or consolidationPerson, or convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter into any sale-lease-back leaseback transactions, or purchase or otherwise acquire (in one an Acquired Entity or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time)Business, except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(iia) each of the Borrower and its Subsidiaries may sell inventory in the ordinary course of business sell, lease business;
(b) each of the Borrower and its Subsidiaries may liquidate or otherwise dispose of any equipment obsolete or materials which, worn-out property in the reasonable judgment ordinary course of such Person, are obsolete or worn outbusiness;
(iiic) Investments may be made to the extent permitted by Section 9.05;
(d) each of the Borrower and its Subsidiaries may sell assets (other than the capital stock including by way of any Subsidiary Guarantor and any Designated Hotel Property), merger or consolidation or in connection with sale-leaseback transactions) so long as (i) no Default or Event of Default then exists has occurred and is continuing or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (Fair Market Value as determined in good faith by the Borrower or such Subsidiary, as the case may be)Borrower, (iii) at least 75% with respect to any such transaction in which the purchase price is in excess of $3,000,000, the total consideration received by the Borrower or such Subsidiary is consists of at least 75% cash and is or Cash Equivalents paid at the time of the closing of such sale; provided, however, that for the purposes of this clause (iii), (w) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the Obligations or that is secured by Liens that are subordinated to the Liens securing the Obligations or that are owed to the Borrower or any Subsidiary) of the Borrower or any Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or the notes thereto) that are assumed by the transferee of any such assets and for which the Borrower and/or its applicable Subsidiary have been validly released by all relevant creditors in writing, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such disposition, (y) any securities received by the Borrower or any Subsidiary from such transferee that are converted by such Person 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 and (z) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at such time outstanding, not to exceed $3,750,000 at 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, and (iv) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(f) and (v) the aggregate amount 4.02(c); provided, that no capital stock or other Equity Interests of the proceeds received from all assets any Subsidiary shall be sold pursuant to this clause (iiid), unless (1) shall all of the capital stock or other Equity Interests of such Subsidiary are sold in accordance with this clause (d) or (2) such sale is a sale of less than 100% of the capital stock or other Equity Interests of an Excluded Subsidiary; provided, that the aggregate Fair Market Value of all such sales of capital stock or other Equity Interests pursuant to this clause (2) does not exceed $20,000,000 in any fiscal year 2.5% of the Borrower;
(iv) each Consolidated Total Assets of the Borrower and its Subsidiaries may sell the Designated Hotel Properties (other than pursuant to a sale-leaseback transaction), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv)sale;
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Ventures, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84
(xe) each of the Borrower and its Subsidiaries may lease (as lessee), sublease (as sublessee) or license (as licensee) real or personal property (so long as any such lease or license does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv9.04(d)); provided, that Holdings and its Subsidiaries may not exclusively license any of their intellectual property;
(xif) each of the Borrower and its Subsidiaries may make sales of inventory sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(xii) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xiv) each of the Borrower and its Subsidiaries may enter into sale-lease-back transactions with respect to owned Hotel Properties (including the Designated Hotel Properties), so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xvig) each of the Borrower and its Subsidiaries may grant licenses, sublicenses, leases or subsubleases (including with respect to intellectual property, to the extent such license, sublicense, lease or sublease is non-leases exclusive) to other Persons in the ordinary course of business not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(xviih) the Borrower or any Subsidiary of the Borrower may convey, sell or otherwise transfer all or any part of its business, properties and assets to any Qualified Credit Party, so long as any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect (including, as the case may be, as same may be replaced by the transferee Qualified Credit Party) and perfected (to at least the same extent as in effect immediately prior to such transfer) and all actions required to maintain or renew said perfected status have been taken;
(i) any Subsidiary of the Borrower may merge or consolidate with and into, or be dissolved or liquidated into, any Qualified Credit Party, so long as (i) in the case of any such merger, consolidation, dissolution or liquidation involving the Borrower, the Borrower is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, (ii) in the case of any such merger, consolidation, dissolution or liquidation involving a Credit Party, a Credit Party is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, and (iii) all actions required to create or maintain perfected Liens in respect of assets required to be Collateral have been taken;
(j) [reserved];
(k) each of the Borrower and its Subsidiaries may sell liquidate or otherwise dispose of Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as Equivalents, in each such sale is case for cash and at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be); andCash Equivalents;
(xviiil) each Liens may be granted to the extent permitted by Section 9.01;
(m) any involuntary loss, damage or destruction of property and the disposition of the assets so damaged or destroyed shall be permitted;
(n) any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of use of property shall be permitted;
(o) the lapse, abandonment or cancellation of registered or pending patents, trademarks and other intellectual property of the Borrower and its Subsidiaries mayshall be permitted in the reasonable business judgment of the Borrower or such Subsidiary;
(p) any Subsidiary of the Borrower that is not a Credit Party may be merged, consolidated or amalgamated with and into, or be dissolved or liquidated into, or transfer any of its assets to, any Subsidiary of the Borrower that is not a Credit Party, so long as any security interests required to be granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents or Section 8.12 in the Equity Interests of such Subsidiary shall remain in full force and effect, or as the case may be, be granted, and perfected and enforceable and all actions required to maintain or create said perfected status have been taken;
(q) Dividends may be paid to the extent permitted by Section 9.03;
(r) the discount of Inventory, accounts receivable or notes receivable in the ordinary course of businessbusiness or the conversion of accounts receivable to notes receivable may be made, licensein each case, as licensor consistent with past practices prior to the Closing Date;
(s) dispositions of receivables in connection with the compromise, settlement or licenseecollection thereof in the ordinary course of business or in bankruptcy or similar proceedings may be made; and
(t) Holdings may merge or consolidate with and into, patentsor be dissolved or liquidated into, trademarks, copyrights and know-how to any direct or from third Persons and to one another indirect parent of Holdings (“Parent”) so long as any (i) as a result of such license merger, consolidation, liquidation or dissolution, Parent shall directly own 100% of the Equity Interests of Borrower and (ii) concurrently with such merger, Parent signs a joinder to this Credit Agreement in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders (and pursuant to which Parent agrees to become “Holdings” hereunder and subject to all of the rights and obligations of Holdings hereunder), along with such other security documents as may be reasonably requested by the Borrower Agents or any other Credit Party in its capacity as licensor is permitted the Required Lenders, and otherwise complies with Section 8.12; provided, that, for the avoidance of doubt, concurrent with such merger, consolidation or liquidation, all actions required to be assigned pursuant to give the Security Agreement (to the extent that the Collateral Agent a perfected security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting Equity Interests of a Lien by the Borrower or any other Credit Party pursuant shall have been taken, including, without limitation, that Parent has delivered to the Security Agreement Collateral Agent certificates, together with undated powers (or other documents of transfer acceptable to the Collateral Agent) endorsed in blank by Parent, representing the intellectual property covered by Equity Interests of the Borrower. For the avoidance of doubt, such licensetransaction shall not be deemed a “Change of Control”. To the extent the Required Banks Lenders waive the provisions of this Section 9.02 with respect to the sale sale, transfer or disposition of any Collateral, or any Collateral is sold sold, transferred or disposed of as permitted by this Section 9.02 (other than to the Borrower or a Subsidiary thereofCredit Party), such Collateral shall be sold sold, transferred or disposed of free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall be are hereby authorized and directed to take any actions deemed appropriate reasonably requested by the Borrower in order to effect or evidence the foregoing; provided, that the Borrower has provided to the Administrative Agent and the Collateral Agent a certificate executed by an Authorized Officer of the Borrower certifying that the applicable sale, transfer or disposition is permitted by this Section 9.02 (and the Lenders hereby authorize and direct the Administrative Agent and the Collateral Agent to conclusively rely on such certificate in performing their obligations under this paragraph).
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter into any sale-lease-back leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of permitted by Section 9.07;
(ii) each of the Borrower and its Subsidiaries may in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete obsolete, unusable, excess or worn out;
(iii) each of the Borrower and its Subsidiaries may sell assets (other than the capital stock of any Subsidiary Guarantor and any Designated Hotel PropertyGuarantor), so long as (iw) no Default or Event of Default then exists or would result therefrom, (iix) each such sale is in an arm'sarms-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iiiy) at least 7580% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) sale and (vz) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iii) shall not exceed $20,000,000 500,000 in any fiscal year of the Borrower;
(iv) each of the Borrower and its Subsidiaries may sell the Designated Hotel Properties (other than pursuant to a sale-leaseback transaction), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Ventures, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84
(x) each of the Borrower and its Subsidiaries may lease (as lessee) real or personal property (so long as any such lease does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv));
(xi) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business;
(xii) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xiv) each of the Borrower and its Subsidiaries may enter into sale-lease-back transactions with respect to owned Hotel Properties (including the Designated Hotel Properties), so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xvi) each of the Borrower and its Subsidiaries may grant leases or sub-leases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(xvii) each of the Borrower and its Subsidiaries may sell Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as each such sale is for cash and at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be); and
(xviii) each of the Borrower and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one another so long as any such license by the Borrower or any other Credit Party in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that the security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any other Credit Party pursuant to the Security Agreement in the intellectual property covered by such license. To the extent the Required Banks waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 (other than to the Borrower or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Too Inc)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Such Persons will not, and will not permit any of its their Subsidiaries to, (w) wind up, liquidate or dissolve its affairs their affairs, or (x) enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose (y) enter into any Disposition in respect of all or any part of its their property or assets, or enter into (including pursuant to any saleSale-lease-back transactionsLeaseback Transaction), or (z) purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials materials, supplies and equipment in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(ii) each of Investments may be made to the Borrower and its Subsidiaries may in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete or worn outextent permitted by Section 9.05;
(iii) each of the Borrower and its Subsidiaries may sell property and assets (other than the capital stock Capital Stock of any Subsidiary Guarantor and any Designated Hotel PropertySubsidiary, accounts receivable, Xxxxxxx Vessels or Fishing Rights appurtenant thereto), so long as (iA) no Default or Event of Default then exists or would result therefrom, (iiB) each such sale is in an arm'sarm’s-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be)value, (iiiC) at least 75% of the total consideration received by the Borrower or such Subsidiary is consists solely of cash and is paid in full at the time of the closing of such salesale (other than reasonable and customary holdbacks, which shall be paid no later than 90 days after such closing), (ivD) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) 4.04(d), and (vE) if there exists at the aggregate time of the closing of such sale an Interest Deferral Period, the amount of the proceeds so received, together with all other proceeds received from all assets sold pursuant to under this clause (iii) shall in such fiscal year, do not exceed $20,000,000 5,000,000, and if there exists at such time no Interest Deferral Period, the amount of proceeds so received, together with all other proceeds received under this clause (iii) in any such fiscal year of the Borroweryear, do not exceed $20,000,000;
(iv) each of the Borrower and its Subsidiaries may sell the Designated Hotel Properties enter into Sale-Leaseback Transactions of tangible property (other than pursuant to a sale-leaseback transaction), Xxxxxxx Vessels) so long as (iA) no Default or Event of Default then exists or would result therefrom, (iiB) each such sale transaction is in an arms'-length arm’s-length transaction and the Borrower or the respective Subsidiary receives at closing at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be)cash, (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (ivC) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)4.04(d), and (IID) unless otherwise permitted under clause (iii) of this Section 9.02, the aggregate amount of gross proceeds so received from any such Sale-Leaseback Transaction, together with the gross proceeds of all other Sale-Leaseback Transactions received by the Borrower and all of its Subsidiaries together after the Effective Date, shall have delivered to not exceed the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv)Sale-Leaseback Limit;
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Ventures, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant subject to the terms thereofof any applicable Security Document, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84
(x) each of the Borrower and its Subsidiaries may lease or charter (as lessee) or license (as licensee) real or personal property (so long as any such lease or license does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv9.04(iii));
(xivi) subject to the terms of any applicable Security Document, each of the Borrower and its Subsidiaries may make sales of inventory sell or discount to Persons other than Non-Credit Party Affiliates, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(xiivii) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted subject to the extent provided in Section 9.07;
(xiv) each terms of the Borrower and its Subsidiaries may enter into sale-lease-back transactions with respect to owned Hotel Properties (including the Designated Hotel Properties), so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) the Borrower may transfer any assets to a Subsidiary Guarantorapplicable Security Document, and any Subsidiary other than in respect of the Borrower may merge or consolidate with and intoVessels, or be liquidated intoFishing Rights, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xvi) each of the Borrower and its Subsidiaries may grant licenses, sublicenses, leases or sub-leases to other Persons subleases not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries, in each case so long as such grant is expressly subject to and does not otherwise impair or adversely affect the Senior Creditor Liens in the asset or property subject thereto;
(xviiviii) any Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower or any Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor, so long as (A) in the case of any such merger, dissolution or liquidation involving the Borrower, the Borrower is the surviving entity of any such merger, dissolution or liquidation, (B) in all other cases, a Wholly-Owned Domestic Subsidiary which is a Subsidiary Guarantor is the surviving corporation of any such merger, dissolution or liquidation, (C) in all cases, the Senior Creditor Liens in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect or required to be in effect immediately prior to such merger, dissolution or liquidation), (D) in all cases, the then continuing or surviving Person shall have assumed all of the obligations of such Subsidiary, and (E) there exists at such time (both before and after giving effect thereto) no Default or Event of Default;
(ix) Permitted Acquisitions may be made to the extent permitted by Section 9.05;
(x) each of the Borrower and its Subsidiaries may sell make sales of inventory and Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as each such sale is for cash and at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be); andordinary course of business;
(xviiixi) each of the Borrower and its Subsidiaries maymay enter into Permitted Vessel Leases and Permitted Fishing Rights Leases;
(xii) the Borrower and its Subsidiaries may undertake Excluded Asset Dispositions; and
(xiii) any Subsidiary of the Borrower may sell, in lease or otherwise transfer all or substantially all of its assets to the ordinary course Borrower or to a Wholly-Owned Domestic Subsidiary of businessthe Borrower that is a Subsidiary Guarantor, license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one another so long as any the Senior Creditor Liens in such license by assets shall remain in full force and effect and perfected (to at least the Borrower same extent as in effect or any other Credit Party in its capacity as licensor is permitted required to be assigned pursuant in effect immediately prior to the Security Agreement (to the extent that the security interest in such patentssale, trademarks, copyrights and know-how is granted thereunderlease or other transfer) and does are not otherwise prohibit the granting of a Lien by the Borrower impaired or any other Credit Party pursuant affected thereby. Subject to the Security Agreement in the intellectual property covered by such license. To Section 13.01(h), to the extent the Required Banks Lenders waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 (other than to the Borrower or a Subsidiary thereof)9.02, such Collateral shall be (unless otherwise specified herein or under the terms of any applicable waiver) sold free and clear of the Liens created by the Security Documents, provided that (a) in the event that the fair market value or book value of any Disposition or any series of related Dispositions undertaken to Non-Credit Party Affiliates after the Borrowing Date exceeds $1,000,000, the Borrower shall deliver to the Administrative Agent in connection with each such Disposition a certificate in form reasonably satisfactory to such agent, executed by a Responsible Officer, certifying the fair market value of the assets involved, and the satisfaction of any and all conditions set forth above, and (b) in the event that the fair market value or book value of any Disposition or any series of related Dispositions undertaken to Non-Credit Party Affiliates after the Borrowing Date exceeds $10,000,000, the Borrower shall provide in connection with each such Disposition (or series of related Dispositions) an opinion of an independent expert, reasonably qualified to provide such opinion, and having a national reputation, with respect to the fair market value of such assets; and each of the Administrative Agent and the Collateral Administrative Agent shall be is hereby authorized by the Lenders to take any actions deemed either of them may deem appropriate in order to effect evidence the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Company will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter into any partnerships, joint ventures or sale-lease-back leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower Company and its Subsidiaries shall be permitted to the extent permitted, so as long as same do not in cause a violation of Section 9.07any of the other provisions of this Agreement;
(ii) the Company and each of the Borrower and its Subsidiaries may may, in the ordinary course of business business, sell, lease or otherwise dispose of any equipment or materials assets which, in the reasonable judgment of such Person, are have become uneconomic, obsolete or worn out, so long as the aggregate amount of Net Sale Proceeds from all such sales in any one fiscal year does not exceed $5,000,000;
(iii) each of the Borrower and its Subsidiaries may sell assets (other than the capital stock of any Subsidiary Guarantor and any Designated Hotel Property), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iii) shall not exceed $20,000,000 in any fiscal year of the Borrower;
(iv) each of the Borrower and its Subsidiaries may sell the Designated Hotel Properties (other than pursuant to a sale-leaseback transaction), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Ventures, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84
(x) each of the Borrower Company and its Subsidiaries may lease (as lessee) real or personal property (so long as any such lease does not create a Capitalized Lease Obligation except to the extent permitted by Sections 9.04 and 9.05 and the Company may lease (as lessor) Real Property in accordance with Section 9.04(iv)9.01(viii);
(xiiv) each of the Borrower Company and its Subsidiaries may make sales or other dispositions of inventory in the ordinary course of business;
(xii) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xiv) each of the Borrower and its Subsidiaries may enter into sale-lease-back transactions with respect to owned Hotel Properties (including the Designated Hotel Properties), so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xvi) each of the Borrower and its Subsidiaries may grant leases or sub-leases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(xvii) each of the Borrower and its Subsidiaries may sell Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as each such sale is for cash and at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be); and
(xviii) each of the Borrower and its Subsidiaries may, in the ordinary course of business, licenseand the Company and its Subsidiaries may otherwise dispose of inventory by providing samples to potential customers, as licensor or licensee, patents, trademarks, copyrights vendors and know-how to or from third Persons other parties in amounts and to one another so long as any such license by at times and otherwise in the Borrower or any other Credit Party in its capacity as licensor is permitted to ordinary course of business and consistent with past practice;
(v) investments may be assigned pursuant to the Security Agreement (made to the extent that permitted by Section 9.06;
(vi) sales of receivables as described in, and in accordance with the security interest in such patentsprovisions of, trademarksSection 4.02(A)(c)(iii) shall be permitted;
(vii) (w) the Company may transfer assets to any Subsidiary Guarantor, copyrights and knowto the extent permitted by Section 9.06(vi)(x), (x) the Company may transfer assets to any Wholly-how is granted thereunderOwned Foreign Subsidiary of the Company, to the extent permitted by Section 9.06(vi)(z), (y) and does not otherwise prohibit any Subsidiary of the granting of a Lien by Company may transfer assets to the Borrower Company or any other Credit Party pursuant Subsidiary Guarantor and (z) any Foreign Subsidiary of the Company may transfer assets to any Wholly-Owned Foreign Subsidiary of the Security Agreement in Company; and
(viii) the intellectual property covered by such license. To the extent the Required Banks waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 (other than to the Borrower or a Subsidiary thereof), such Collateral Permitted Filot Transaction shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoingpermitted.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter into any sale-lease-back leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials materials, equipment and equipment intellectual property in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(ii) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete or worn outbusiness;
(iii) each of Investments may be made to the extent permitted by Section 9.05;
(iv) the Borrower and its Subsidiaries may consummate the Swiss Clubs Sale and may sell other assets (other than including the capital stock or other equity interests of any Subsidiary Guarantor and any Designated Hotel Propertybut otherwise subject to the proviso to this clause (iv) in the case of a Subsidiary Guarantor), so long as (iv) no Default or Event of Default then exists or would result therefrom, (iiw) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iiix) at least 75% of the total consideration received by the Borrower or such Subsidiary is consists of at least 75% cash and is paid at the time of the closing of such sale, (ivy) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(f3.03(d) and (vz) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iiiiv) (exclusive of any proceeds received from the Swiss Clubs Sale) shall not exceed $20,000,000 10,000,000 in any fiscal year of the Borrower, provided that the sale of the capital stock or other equity interests of any Subsidiary Guarantor shall not be permitted pursuant to this clause (iv) unless such sale is for all of the outstanding capital stock or other equity interests of such Subsidiary Guarantor;
(ivv) each of the Borrower and its Subsidiaries may sell the Designated Hotel Properties lease (other than pursuant to a sale-leaseback transaction), as lessee) or license (as licensee) real or personal property (so long as (i) no Default any such lease or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and license does not create a Capitalized Lease Obligation except to the extent) required extent permitted by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b9.04(iii), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests discount, in each case without recourse and in the Existing Red Lion Joint Venturesordinary course of business, so long as (i) no Default accounts receivable arising in the ordinary course of business, but only in connection with the compromise or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing collection thereof and the other transactions contemplated hereby had been consummated on the first day not as part of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi)financing transaction;
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property)grant licenses, and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investmentsublicenses, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84
(x) each of the Borrower and its Subsidiaries may lease (as lessee) real or personal property (so long as any such lease does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv));
(xi) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business;
(xii) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xiv) each of the Borrower and its Subsidiaries may enter into sale-lease-back transactions with respect to owned Hotel Properties (including the Designated Hotel Properties), so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xvi) each of the Borrower and its Subsidiaries may grant leases or sub-leases subleases to other Persons not materially interfering with the conduct of the business of the Borrower and its Subsidiaries taken as a whole, in each case so long as no such grant otherwise affects the Collateral Agent's security interest in the asset or any of its Subsidiariesproperty subject thereto;
(xviiviii) each any Subsidiary of the Borrower (other than the Captive Insurance Company and the License Subsidiary) may merge with and into, or be dissolved or liquidated into, the Borrower or any Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor so long as (i) in the case of any such merger, dissolution or liquidation involving the Borrower, the Borrower is the surviving corporation of any such merger, dissolution or liquidation, (ii) in all other cases, a Wholly-Owned Domestic Subsidiary which is a Subsidiary Guarantor is the surviving corporation of any such merger, dissolution or liquidation, and (iii) in all cases, the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(ix) Permitted Acquisitions may be made to the extent permitted by Section 8.16;
(x) the Borrower and its Subsidiaries may sell Cash Equivalents permitted to be held by them or exchange specific items of equipment (including pursuant to Section 9.05(ii) trade up/trade in transactions), so long as the purpose of each such sale or exchange is for cash to acquire (and at fair market value results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(as determined in good faith by A) the Borrower may transfer assets to any Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor (other than the Captive Insurance Company and the License Subsidiary) and any Subsidiary of the Borrower may transfer assets to the Borrower or such to any Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor (other than the Captive Insurance Company and the License Subsidiary) and (B) the Borrower and its Subsidiaries may transfer intellectual property to the License Subsidiary, in each case so long as the case may besecurity interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer); and
(xviiixii) each of the Borrower and its Subsidiaries may, in the ordinary course of business, licensesell, as licensor transfer or licensee, otherwise dispose of patents, trademarks, service marks, trade names and copyrights and know-how to or from third Persons and to one another so long as any such license by which, in the reasonable judgment of the Borrower or any other Credit Party in its capacity as licensor is permitted such Subsidiary, are determined to be assigned pursuant to the Security Agreement (to the extent that the security interest in such patentsuneconomical, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower negligible or any other Credit Party pursuant to the Security Agreement obsolete in the intellectual property covered by such licenseconduct of its business. To the extent the Required Banks Lenders waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 (other than to the Borrower or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The ------------------------------------------------------- Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter into any sale-lease-back leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower and or any of its Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(ii) each of the Borrower and its Subsidiaries may make sales and/or rentals of inventory in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete or worn outbusiness;
(iii) each of the Borrower and its Subsidiaries may sell or otherwise transfer obsolete, uneconomic or worn-out equipment, materials or other assets in the ordinary course of business;
(iv) Investments may be made to the extent permitted by Section 9.05;
(v) the Borrower and its Subsidiaries may sell assets (other than the capital stock or other equity interests of any Wholly-Owned Subsidiary Guarantor and any Designated Hotel Propertyunless all of the capital stock or other equity interests of such Wholly- Owned Subsidiary are sold in accordance with this clause (v)), so long as (iv) no Default or Event of Default then exists or would result therefrom, (iiw) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iiix) at least 75% of the total consideration received by the Borrower or such Subsidiary is at least 80% cash and is paid at the time of the closing of such sale, (ivy) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(f4.02(e) and (vz) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iiiv) shall not exceed $20,000,000 25,000,000 in any fiscal year of the Borrower;
(iv) each of the Borrower and its Subsidiaries may sell the Designated Hotel Properties (other than pursuant to a sale-leaseback transaction), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Ventures, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84
(x) each of the Borrower and its Subsidiaries may lease (as lessee) or license (as licensee) real or personal property (so long as any such lease or license does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv));
(xivii) each of the Borrower and its Subsidiaries may make sales of inventory sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(xii) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xiv) each of the Borrower and its Subsidiaries may enter into sale-lease-back transactions with respect to owned Hotel Properties (including the Designated Hotel Properties), so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xviviii) each of the Borrower and its Subsidiaries may grant licenses, sublicenses, leases or sub-leases subleases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries, in each case so long as no such grant otherwise affects the Collateral Agent's security interest in the asset or property subject thereto;
(xviiix) the Borrower may transfer assets to any Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor and any Subsidiary of the Borrower may transfer assets to the Borrower or to any Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor, in each case so long as the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(x) any Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower or any Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor so long as (i) in the case of any such merger, dissolution or liquidation involving the Borrower, the Borrower is the surviving corporation of any such merger, dissolution or liquidation, (ii) in all other cases, the Wholly-Owned Domestic Subsidiary which is a Subsidiary Guarantor is the surviving corporation of any such merger, dissolution or liquidation, and (iii) in all cases, the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(xi) any Foreign Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, or transfer any of its assets to, any Wholly-Owned Foreign Subsidiary of the Borrower so long as (i) in the case of any such merger, dissolution or liquidation, a Wholly-Owned Foreign Subsidiary of the Borrower is the survivor of such merger, dissolution or liquidation, and (ii) any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the equity interests of such Wholly-Owned Foreign Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(xii) Permitted Acquisitions may be made to the extent permitted by Section 8.14;
(xiii) subject to Section 9.04(xii), Foreign Subsidiaries of the Borrower may repurchase equipment as may be required in accordance with the terms of the Buy-Back Arrangements relating to such equipment;
(xiv) subject to Section 9.04(xiv) and so long as no Default or Event of Default then exists or would result therefrom, each of the Borrower and its Subsidiaries may from time to time (i) sell Cash Equivalents permitted to be held by them the Factor for cash accounts receivable (and rights ancillary thereto) pursuant to, and in accordance with the terms of, the Factoring Agreement and (ii) repurchase accounts receivable theretofore sold to Section 9.05(iithe Factor pursuant to, and to the extent required by, the Factoring Agreement;
(xv) the Borrower may merge with and into a Wholly-Owned Domestic Subsidiary of the Borrower formed solely for the purpose of reincorporating the Borrower in the State of Delaware so long as each (i) the surviving corporation expressly assumes all obligations of the Borrower under the Credit Documents pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, (ii) the name of the surviving corporation is "The Manitowoc Company, Inc." or such sale is for cash other name as shall have been previously notified to the Administrative Agent, (iii) all actions have been taken that are necessary or, in the reasonable opinion of the Administrative Agent desirable, to maintain the perfection and at fair market value (as determined in good faith priority of the Liens created by the Borrower or such Subsidiary, as respective Security Documents in the case may be); and
(xviii) each assets of the Borrower and its Subsidiaries (iv) at least 20 days' prior written notice thereof is given by the Borrower to the Administrative Agent;
(xvi) the Borrower may, in the ordinary course of businessbusiness and on a basis consistent with past practice, licenseenter into one or more sale-leaseback transactions with one or more financial institutions as lessor pursuant to which the Borrower sells equipment to such lessor for cash and such lessor subsequently leases back such equipment to the Borrower or to certain Subsidiaries of the Borrower, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one another in each case so long as any such license by the aggregate amount of the obligations of the Borrower or and its Subsidiaries in respect of all such sale-leaseback transactions does not exceed $20,000,000 at any other Credit Party in its capacity as licensor is permitted to time outstanding;
(xvii) Dividends may be assigned pursuant paid as, and to the Security Agreement extent, permitted by Section 9.03; and
(to xviii) the extent that Acquisition shall be permitted in accordance with the security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit terms of the granting of a Lien by the Borrower or any other Credit Party pursuant to the Security Agreement in the intellectual property covered by such licenseAcquisition Documents. To the extent the Required Banks Lenders waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 (other than to the Borrower or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Manitowoc Co Inc)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter into any sale-lease-back leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials materials, equipment and equipment intangible assets in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(ii) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete or worn outbusiness;
(iii) Investments may be made to the extent permitted by Section 9.05;
(iv) each of the Borrower and its Subsidiaries may sell or otherwise dispose of obsolete, uneconomic or worn-out equipment in the ordinary course of business;
(v) the Borrower and its Subsidiaries may sell assets (other than the capital stock or other equity interests of any Subsidiary Guarantor unless all of the capital stock and any Designated Hotel Propertyother equity interests of such Subsidiary then owned by the Borrower and its Subsidiaries are sold in a sale permitted by this clause (v)), so long as (iv) no Default or Event of Default then exists or would result therefrom, (iiw) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iiix) at least 75% of the total consideration received by the Borrower or such Subsidiary is consists of at least 75% cash and is paid at the time of the closing of such sale, (ivy) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(f4.02(e) and (vz) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iiiv) shall not exceed $20,000,000 12,500,000 in any fiscal year of the Borrower;
(iv) each of the Borrower and its Subsidiaries may sell the Designated Hotel Properties (other than pursuant to a sale-leaseback transaction), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower and its Subsidiaries may sell all lease (as lessee) or a portion of their equity interests in the Existing Red Lion Joint Ventures, license (as licensee) real or personal property (so long as (i) no Default any such lease or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and license does not create a Capitalized Lease Obligation except to the extent) required extent permitted by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b9.04(v), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investmentdiscount, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction case without recourse and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case ordinary course of a sale business, accounts receivable arising in the ordinary course of an equity interest business, but only in a Joint Venture, connection with the cash proceeds therefrom are applied compromise or collection thereof and not as (and to the extent) required by Section 4.02(i)part of any financing transaction or bulk sale;
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84
(x) each of the Borrower and its Subsidiaries may lease (as lessee) real or personal property (so long as any such lease does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv));
(xi) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business;
(xii) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xiv) each of the Borrower and its Subsidiaries may enter into sale-lease-back transactions with respect to owned Hotel Properties (including the Designated Hotel Properties)grant licenses, so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transactionsublicenses, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xvi) each of the Borrower and its Subsidiaries may grant leases or sub-leases subleases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries, in each case so long as no such grant otherwise restricts any Credit Party's right to grant a lien on such assets or property in favor of the Collaterxx Xxxxx;
(xviiix) each any Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, or transfer any of its assets to, the Borrower or any Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor so long as (i) in the case of any such merger, dissolution or liquidation involving the Borrower, the Borrower is the surviving corporation of any such merger, dissolution or liquidation, (ii) in all other cases, a Wholly-Owned Domestic Subsidiary which is a Subsidiary Guarantor is the surviving corporation of any such merger, dissolution or liquidation, (iii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation), and (iv) in the case of any such transaction pursuant to which any consideration is paid to a Person that is not a Wholly-Owned Subsidiary of the Borrower, such consideration shall be permitted to be paid at such time only to the extent that it could otherwise have been paid pursuant to (and the Borrower shall be required to satisfy the provisions of ) Section 8.16 or 9.05(xiv), as applicable; provided, however, so long as any New Senior Notes or the New Aetna Note remain outstanding, no Subsidiary of the Borrower may merge with or into, or be dissolved or liquidated into, or transfer any of its assets to, the Borrower;
(x) any Foreign Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, or transfer any of its assets to, any Wholly-Owned Foreign Subsidiary of the Borrower so long as (i) in the case of any such merger, dissolution or liquidation, a Wholly-Owned Foreign Subsidiary of the Borrower is the surviving corporation of any such merger, dissolution or liquidation, and (ii) in the case of any such transaction pursuant to which any consideration is paid to a Person that is not a Wholly-Owned Subsidiary of the Borrower, such consideration shall be permitted to be paid at such time only to the extent that it could otherwise have been paid pursuant to (and the Borrower shall be required to satisfy the provisions of) Section 8.16 or 9.05(xiv), as applicable;
(xi) Permitted Acquisitions may be made to the extent permitted by Section 8.16; and
(xii) the Borrower or any of its Subsidiaries may sell Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as each such sale is for cash and at fair market value (as determined in good faith by the Borrower or such Subsidiary, as assets which are the case may be); and
(xviii) each subject of the Borrower Aetna Purchase Option upon the terms and its Subsidiaries may, conditions contained in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one another so long as any such license by the Borrower or any other Credit Party in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that the security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any other Credit Party pursuant to the Security Agreement in the intellectual property covered by such licenseAetna Asset Purchase Agreement. To the extent the Required Banks Lenders waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 (other than to the Borrower or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter into any sale-lease-back leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent (although any Capital Expenditures constituting a Permitted Acquisition shall be governed by clause (ix) of this Section 8.02 and not in violation of Section 9.07by this clause (i));
(ii) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete or worn outbusiness;
(iii) each of the Borrower and its Subsidiaries may sell obsolete or worn-out equipment or materials;
(iv) each of the Borrower and its Subsidiaries may sell assets (other than the capital stock of any Subsidiary Guarantor and any Designated Hotel PropertyGuarantor), so long as (iw) no Default or Event of Default then exists or would result therefrom, (iix) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iiiy) at least 7585% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (vz) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iiiiv) shall not exceed $20,000,000 5,000,000 in any fiscal year of the Borrower;
(ivv) Investments may be made to the extent permitted by Section 8.05;
(vi) each of the Borrower and its Subsidiaries may lease (as lessee) or license (as licensee) real or personal property (so long as any such lease or license does not create a Capital Lease Obligation except to the extent permitted by Section 8.04(iv));
(vii) each of the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the Designated Hotel Properties ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(viii) each of the Borrower and its Subsidiaries may grant licenses, sublicenses, leases or subleases to other than pursuant Persons in the ordinary course of business and not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(ix) the Borrower and its Wholly-Owned Subsidiaries may acquire all or substantially all of the assets of any Person (or all or substantially all of the assets of a product line or division of any Person) or 100% (or at least 51% to the extent provided below) of the capital stock or other equity interests of any Person (any such acquisition permitted by this clause (ix), a sale-leaseback transaction"Permitted Acquisition"), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each of the representations and warranties contained in Article VI shall be true and correct in all material respects both before and after giving effect to such sale is Permitted Acquisition, (iii) any Liens or Indebtedness assumed, incurred or issued in an arms'-length transaction and the Borrower connection with such acquisition are otherwise permitted under Section 8.01 or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary8.04, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) at least 10 Business Days prior to the Net Sale Proceeds therefrom are applied as consummation of any Permitted Acquisition, Holdings shall have delivered to the Administrative Agent and each of the Banks (A) a certificate of a Responsible Officer of Holdings certifying (and to showing the extentcalculations therefor in reasonable detail) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or that Holdings would have existed during been in compliance with the Test financial covenants set forth in Sections 8.07, 8.08 and 8.09 for the Measurement Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) then most recently ended prior to the date of the respective sale pursuant toconsummation of such Permitted Acquisition, the in each case with such financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining to be determined on a pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated basis as if the Transaction, the related financing thereof and the other transactions contemplated hereby such Permitted Acquisition had been consummated on the first day of such period Measurement Period (and assuming that any Indebtedness incurred, issued or assumed in connection therewith had been incurred, issued or assumed on the first day of, and had remained outstanding throughout, such Measurement Period), it being understood, however, that with respect to any Permitted Acquisition consummated prior to June 30, 1998, Holdings shall be in pro forma compliance with the financial ratio levels set forth in Sections 8.07, 8.08, and 8.09 in respect of the Measurement Period ending on June 30, 1998 and (xB) assuming in the case of any Permitted Acquisition in which the aggregate consideration equals or exceeds $5,000,000, projections (in reasonable detail) prepared by a Responsible Officer of Holdings for the period from the date of the consummation of such Permitted Acquisition to the date which is one year thereafter calculated after giving effect to the respective Permitted Acquisition, demonstrating that the amount level of Capital Expendituresfinancial performance measured by the financial covenants set forth in Sections 8.07, Hotel Investments and/or Hotel Acquisitions made during any portion of 8.08 and 8.09 shall be better than or equal to such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall level as would be required to demonstrate, on a Pro Forma Basis, provide that no Default or Event of Default will exist underunder such financial covenants, or would have existed during as compliance with such period prior to financial covenants will be required through the date which is one year from the date of the consummation of the respective sale pursuant toPermitted Acquisition, (v) the financial covenants contained only consideration paid by the Borrower or any of its Wholly-Owned Subsidiaries in connection with any such Permitted Acquisition consists solely of cash (including as a result of any earnout, non-compete or deferred compensation arrangements), Indebtedness incurred, assumed or issued to the extent permitted by Section 8.04, Holdings Common Stock and/or Qualified Holdings Preferred Stock, (vi) no more than $5,000,000 in the aggregate in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer fiscal year of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (may be expended on Permitted Acquisitions in reasonable detail) required by this clause (iv);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to which the Borrower or a Wholly-Owned Subsidiary thereof)thereof acquires less than 100% of the capital stock of any Person and then only so long as the Borrower or such Wholly-Owned Subsidiary controls the board of directors of such Person, (vii) the aggregate consideration paid in each case for cash connection with all Permitted Acquisitions effected in any fiscal year of the Borrower (including, without limitation, any earnout, non-compete or deferred compensation arrangements, the aggregate principal amount of any Indebtedness assumed, incurred or issued in connection therewith and at the fair market value of any Holdings Common Stock or Qualified Holdings Preferred Stock issued in connection therewith (as determined in good faith by RFS Holdings)) does not exceed $10,000,000, although the Borrower or RFS Sub) a Wholly-Owned Subsidiary thereof also may consummate the acquisition of Legal Communications, Ltd. in fiscal year 1998 so long as (A) the Net Sale Proceeds therefrom are applied as aggregate consideration paid in connection with such Permitted Acquisition does not exceed $21,000,000 and (and to the extent) required by Section 4.02(i);
(viB) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests other conditions set forth in the Existing Red Lion Joint Venturesthis Section 8.02(ix) are complied with, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (vviii) (I) based on calculations made by the Borrower on a Pro Forma Basis immediately after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant toany Permitted Acquisition, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower aggregate unutilized Revolving Commitments shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i)$10,000,000;
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84
(x) each of the Borrower and its Subsidiaries may lease (as lessee) real or personal property (so long as any such lease does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv));
(xi) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business;
(xii) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xiv) each of the Borrower and its Subsidiaries may enter into sale-lease-back transactions with respect to owned Hotel Properties (including the Designated Hotel Properties), so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, to the Borrower and may be merged, consolidated or any Subsidiary Guarantor, in each case, liquidated with or into the Borrower so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transactionmerger, consolidation or liquidation; and
(iixi) any Subsidiary of the Borrower may transfer any of its assets to a Subsidiary Guarantor and may be merged, consolidated or liquidated with or into any Subsidiary Guarantor so long as (i) in the case of any such transaction involving a non-Wholly-Owned Subsidiarymerger, consolidation or liquidation, the only consideration paid to third parties in connection therewith are shares of common stock of Subsidiary Guarantor is the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) surviving corporation and (iiiii) in addition to the requirements of preceding clause (i), in the case of any transaction between such merger, consolidation or among the Borrower and the liquidation involving a Wholly-Owned Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xvi) each of the Borrower and its Subsidiaries may grant leases Borrower, the Wholly-Owned Subsidiary is the surviving corporation of such merger, consolidation or sub-leases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(xvii) each of the Borrower and its Subsidiaries may sell Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as each such sale is for cash and at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be); and
(xviii) each of the Borrower and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one another so long as any such license by the Borrower or any other Credit Party in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that the security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any other Credit Party pursuant to the Security Agreement in the intellectual property covered by such licenseliquidation. To the extent the Required Banks waive the provisions of this Section 9.02 8.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 8.02 (other than to the Borrower Holdings or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Collateral Documents, and the Administrative Agent and the Collateral Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter into any sale-lease-back leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.079.08;
(ii) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business;
(iii) each of the Borrower and its Subsidiaries may sell obsolete, uneconomic or worn-out equipment or materials in the ordinary course of business sell, lease or otherwise dispose of any other equipment or materials which, in the reasonable judgment ordinary course of business which are no longer useful in the business of the Borrower or such PersonSubsidiary, are obsolete or worn outprovided that the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iii) shall not exceed $250,000 in any fiscal year of the Borrower;
(iiiiv) each of the Borrower and its Subsidiaries may sell assets (other than the capital stock of any Subsidiary Guarantor and any Designated Hotel PropertyGuarantor), so long as (iu) no Default or Event of Default then exists or would result therefrom, (iiw) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iiix) at least 75% of the total consideration received by the Borrower or such Subsidiary is at least 90% cash and is paid at the time of the closing of such sale, (ivy) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(f4.02(e) and (vz) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iiiiv) shall not exceed $20,000,000 1,500,000 in any fiscal year of the Borrower;
(iv) each of the Borrower and its Subsidiaries may sell the Designated Hotel Properties (other than pursuant to a sale-leaseback transaction), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Ventures, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84;
(xvi) each of the Borrower and its Subsidiaries may lease (as lessee) real or personal property (so long as any such lease does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv));
(xivii) each of the Borrower and its Subsidiaries may make sales of inventory sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(xiiviii) the Transaction Acquisition shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xiv) each of the Borrower and its Subsidiaries may enter into sale-lease-back transactions with respect to owned Hotel Properties (including the Designated Hotel Properties), so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xviix) each of the Borrower and its Subsidiaries may grant leases or sub-leases subleases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(xviix) any Subsidiary of the Borrower (x) may be merged, consolidated or liquidated with or into the Borrower so long as the Borrower is the surviving corporation of such merger, consolidation or liquidation and (y) may transfer all or any portion of its assets to the Borrower;
(xi) any Subsidiary of the Borrower (x) may be merged, consolidated or liquidated with or into any other Subsidiary of the Borrower so long as (i) in the case of any such merger, consolidation or liquidation involving a Subsidiary Guarantor, the Subsidiary Guarantor is the surviving corporation of such merger, consolidation or liquidation and (ii) in addition to the requirements or preceding clause (i), in the case of any such merger, consolidation or liquidation involving a Wholly-Owned Subsidiary of the Borrower, the Wholly-Owned Subsidiary is the surviving corporation of such merger, consolidation or liquidation, (y) may transfer all or any portion of its assets to any Subsidiary Guarantor and (z) may, so long as such Subsidiary is not a Subsidiary Guarantor, (i) be merged, consolidated or liquidated with or into any other Subsidiary of the Borrower that is not a Subsidiary Guarantor and (ii) transfer all or any portion of its assets to any other Subsidiary of the Borrower that is not a Subsidiary Guarantor; and
(xii) after the consummation of the Merger, each of the Borrower and its Subsidiaries the Subsidiary Guarantors may sell Cash Equivalents acquire all or substantially all of the assets of any Person (or all or substantially all of the assets of a product line or division of any Person) or 100% (or, to the extent permitted to be held below, at least 90%) of the capital stock of any Person (including by them pursuant to Section 9.05(ii) the merger or consolidation of such Person with and into the Borrower or such Subsidiary Guarantor so long as the Borrower or such Subsidiary Guarantor is the surviving corporation of such merger or consolidation) (any such acquisition, merger or consolidation permitted by this clause (xii), a "Permitted Acquisition"), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each of the representations and warranties contained in Section 7 shall be true and correct in all material respects both before and after giving effect to such sale Permitted Acquisition (provided that any -66- representation or warranty which is made as of specified shall solely be required to be true and correct in all material respects as of such date), (iii) any Liens or Indebtedness assumed or issued (including any Seller Notes) in connection with such acquisition are otherwise permitted under Section 9.01 or 9.04, as the case may be, (iv) the only consideration paid by the Borrower or any Subsidiary Guarantor in connection with any Permitted Acquisition consists solely of cash, Seller Notes, common stock of Holdings and/or Qualified Preferred Stock of Holdings, (v) at least 10 Business Days prior to the consummation of any Permitted Acquisition, the Borrower shall have delivered to the Agent and each of the Banks a certificate of Holdings' Chief Financial Officer certifying (and showing the calculations therefor in reasonable detail) that (x) the assets or Person acquired pursuant to such Permitted Acquisition will have pro forma positive earnings (before interest expense and taxes and adding back any amortization of intangibles and depreciation) and (y) Holding's and its Subsidiaries would have been in compliance with the financial covenants set forth in Sections 9.08 and 9.09 for cash the Test Period then most recently ended prior to the date of the consummation of such Permitted Acquisition, in each case with such earnings and financial covenants to be determined on a pro forma basis as if such Permitted Acquisition had been consummated on the first day of such Test Period (and assuming that any Indebtedness incurred, issued or assumed in connection therewith had been incurred, issued or assumed on the first day of, and had remained outstanding throughout, such Test Period), it being understood, however, (A) that with respect to any Permitted Acquisition consummated prior to May 31, 1998, the Borrower shall be in pro forma compliance with the financial ratios set forth in Sections 9.08 and 9.09 in respect of the Test Period ending May 31, 1998 but utilizing the Borrower's Consolidated EBITDA for its fourth quarter ended February 28, 1998 (and annualized in connection with determining compliance with Section 9.09), and (B) that with respect to any Permitted Acquisition consummated on or prior to January 29, 2000, the Borrower's pro forma Leverage Ratio for the respective Test period shall be at least .25 below the maximum permitted Leverage Ratio for such Test Period as set forth in Section 9.09 (provided that this clause (B) shall not apply to any Permitted Acquisition in which the aggregate consideration (determined as provided below in this Section 9.02(xii)) is $1,000,000 or less so long as no more than one such $1,000,000 or less Permitted Acquisition is consummated in any six month period), (vi) the aggregate consideration paid in connection with any Permitted Acquisition or group of related Permitted Acquisitions (including, without limitation, any earn-out, non-compete or deferred compensation arrangements, the aggregate principal amount of any Indebtedness issued and/or assumed in connection therewith and the fair market value of any capital stock of Holdings issued in connection therewith (as determined in good faith by the Borrower or such SubsidiaryBoard of Directors of Holdings)) does not exceed $10,000,000, as (vii) the case may be); and
(xviii) each aggregate cash consideration paid in connection with all Permitted Acquisitions in which less than 100% of the Borrower capital stock of the acquired Person is purchased (including, without limitation, any earn-out, non-compete or deferred compensation arrangements, the aggregate principal amount of any Indebtedness issued and/or assumed in connection therewith and its Subsidiaries may, the fair market value of any capital stock of Holdings issued in connection therewith) does not exceed $5,000,000 and (viii) the assets acquired pursuant to each such Permitted Acquisition are engaged in a business permitted by Section 9.13 and are employed principally in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights United States and know-how to or from third Persons and to one another so long as any such license by the Borrower or any other Credit Party in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that the security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any other Credit Party pursuant to the Security Agreement in the intellectual property covered by such licenseCanada. To the extent the Required Banks waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 (other than to the Borrower Holdings or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter into any sale-lease-back leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) all or any part of the property or assets (other than purchases or other acquisitions of inventory, materials materials, supplies and equipment in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except thatthat the following transactions (and agreements related thereto) shall be permitted:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of accordance with Section 9.07;
(ii) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete or worn outbusiness;
(iii) each of the Borrower and its Subsidiaries may sell uneconomic, obsolete or worn-out equipment, materials or other assets in the ordinary course of business, provided that the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iii) shall not exceed $350,000 in any fiscal year of the Borrower;
(iv) each of the Borrower and its Subsidiaries may sell assets (other than the capital stock of any Subsidiary Guarantor and any Designated Hotel Propertyunless all of the capital stock of such Subsidiary Guarantor is sold), so long as (iv) no Default or Event of Default then exists or would result therefrom, (iiw) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iiix) at least 75% of the total consideration received by the Borrower or such Subsidiary is at least 80% cash, which cash and is paid at the time of the closing of such sale, provided that the amount of any liabilities (ivas shown on the Borrower's or such Subsidiary's most recent balance sheet) of the Borrower or any Subsidiary (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets shall be deemed to be cash for purposes of this clause (x), (y) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(f4.02(d) and (vz) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iiiiv) (including, for this purpose, the amount of any assumed liabilities referred to in clause (x) above) shall not exceed $20,000,000 1,000,000 in any fiscal year of the Borrower;
(iv) each of the Borrower and its Subsidiaries may sell the Designated Hotel Properties (other than pursuant to a sale-leaseback transaction), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Ventures, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84;
(xvi) each of the Borrower and its Subsidiaries may lease (as lessee) real or personal property (so long as any such lease does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv));
(xivii) each of the Borrower and its Subsidiaries may make sales of inventory sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of a financing transaction;
(xiiviii) the Transaction Recapitalization and all payments required to be made by the Recapitalization Documents (as in effect on the Initial Borrowing Date) shall be permittedpermitted in accordance with the terms of the Recapitalization Documents;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xiv) each of the Borrower and its Subsidiaries may enter into sale-lease-back transactions with respect to owned Hotel Properties (including the Designated Hotel Properties), so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xviix) each of the Borrower and its Subsidiaries may grant leases or sub-leases subleases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(xviix) each any Subsidiary of the Borrower and its Subsidiaries (x) may sell Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) merged, consolidated or liquidated with or into the Borrower so long as each such sale is for cash and at fair market value (as determined in good faith by the Borrower is the surviving corporation of such merger, consolidation or such Subsidiary, as the case liquidation and (y) may be); and
(xviii) each of the Borrower and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one another so long as any such license by the Borrower transfer all or any other Credit Party in portion of its capacity as licensor is permitted to be assigned pursuant assets to the Security Agreement (to the extent that the security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any other Credit Party pursuant to the Security Agreement in the intellectual property covered by such license. To the extent the Required Banks waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 (other than to the Borrower or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.Borrower;
Appears in 1 contract
Samples: Credit Agreement (Scot Inc)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Company will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter into any sale-lease-back leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment property or assets in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
(ia) Capital Expenditures by the Borrower Company and its Subsidiaries shall be permitted to the extent not in violation of Section 9.07permitted;
(iib) each of the Borrower Company and its Subsidiaries may sell inventory in the ordinary course of business sell, lease business;
(c) each of the Company and its Subsidiaries may liquidate or otherwise dispose of any equipment obsolete or materials which, worn-out property in the reasonable judgment ordinary course of such Person, are obsolete or worn outbusiness;
(iiid) Investments may be made to the extent permitted by Section 10.05;
(e) each of the Borrower Company and its Subsidiaries may sell property or assets (other than the capital stock or other Equity Interests of any Wholly-Owned Subsidiary, unless all of the capital stock or other Equity Interests of such Wholly-Owned Subsidiary Guarantor and any Designated Hotel Propertyare sold in accordance with this clause (e)), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm'sarm’s-length transaction and the Borrower Company or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be)Fair Market Value, (iii) the consideration received by the Company or such Subsidiary consists of at least 75% of the total consideration received by the Borrower cash or such Subsidiary is cash Cash Equivalents and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(f5.02(b) and (v) the aggregate amount of the cash and non-cash proceeds received from all assets sold pursuant to this clause (e) shall not exceed (x) $5,000,000 in any Fiscal Year of the Company and (y) $15,000,000 in the aggregate (for this purpose, in each case, using the Fair Market Value of property other than cash);
(f) each of the Company and its Subsidiaries may lease (as lessee) or license (as licensee) real or personal property in the ordinary course of business (so long as any such lease or license does not create a Capitalized Lease Obligation except to the extent permitted by Section 10.04(d));
(g) each of the Company and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(h) each of the Company and its Subsidiaries may grant licenses, sublicenses, leases or subleases to other Persons not materially interfering with the conduct of the business of the Company or any of its Subsidiaries, in each case so long as no such grant otherwise affects the ABL Loan Collateral Agent’s security interest in the asset or property subject thereto;
(i) (x) any Subsidiary of the Company may convey, sell or otherwise transfer all or any part of its business, properties and assets to any Qualified Credit Party, so long as any security interests granted to the ABL Loan Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer) and all actions required to maintain said perfected status have been taken and (y) any Subsidiary that is not a Credit Party may convey, sell or otherwise transfer any of its assets to any other Subsidiary that is not a Credit Party;
(j) (x) any Subsidiary of the Company may merge or consolidate with and into, or be dissolved or liquidated into, any Qualified Credit Party, so long as (i) in the case of any such merger, consolidation, dissolution or liquidation involving the Company, the Company is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, (ii) in the case of any such merger, consolidation, dissolution or liquidation involving a Borrower, such Borrower is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, (iii) in all other cases, a Qualified Credit Party is the surviving or continuing corporation of any such merger, consolidation, dissolution or liquidation, and (iv) any security interests granted to the ABL Loan Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, consolidation, dissolution or liquidation) and all actions required to maintain said perfected status have been taken and (y) any Subsidiary of the Company that is not a Credit Party may merge or consolidate with and into, or be dissolved or liquidated into any other Subsidiary of the Company that is not a Credit Party;
(k) Permitted Acquisitions may be consummated in accordance with the requirements of Section 9.14;
(l) the Company and its Subsidiaries may liquidate or otherwise dispose of Cash Equivalents in the ordinary course of business, in each case for cash at Fair Market Value;
(m) the Company and its Subsidiaries may make dispositions resulting from any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of any Borrower or its Subsidiaries to the extent such taking or condemnation is not reasonably likely to result in a Material Adverse Effect;
(n) the Credit Parties may (w) effect the transactions permitted pursuant to Section 10.06, (x) effect Dividends permitted under Section 10.03 and (y) grant Liens in their respective property and assets to the extent permitted by Section 10.01;
(o) the Credit Parties may take any and all actions to consummate the Retail Restructure, including the transfer of its equity interests in Smiley’s to HIE Retail (whether by merger or otherwise);
(p) the Borrowers and their Subsidiaries may dispose of property and assets to the extent such property and assets were the subject of a casualty or of condemnation proceedings upon the occurrence of the related Recovery Event;
(q) each of the Company and its Subsidiaries may sell property or assets in transactions not otherwise permitted by this Section 10.02 provided that the Net Sale Proceeds received from all assets or property sold pursuant to this clause (q) shall not exceed $20,000,000 2,000,000 in any fiscal year Fiscal Year of the BorrowerCompany;
(ivr) each of the Borrower Company and its Subsidiaries may sell the Designated Hotel Properties engage in Sale Leasebacks (other than pursuant to a sale-leaseback transaction), in respect of Collateral) so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale Sale Leaseback is in an arms'-length arm’s-length transaction and the Borrower Company or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such SubsidiaryFair Market Value, as the case may be), and (iii) at least 75% of the total consideration received by the Borrower Company or such Subsidiary is consists of cash and is paid at the time of the closing of such saleSale Leaseback, provided that the Fair Market Value for all property sold pursuant to such Sale Leasebacks does not exceed $10,000,000 in the aggregate for all such sales; and
(ivs) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower Company and its Subsidiaries may sell all or a portion engage in Sale Leasebacks (other than in respect of their equity interests in the Existing Red Lion Joint Ventures, Loan Collateral) on Refinery catalyst so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale Sale Leaseback is in an arms'-length arm’s-length transaction and the Borrower Company or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such SubsidiaryFair Market Value, as the case may be), and (iii) at least 75% of the total consideration received by the Borrower Company or such Subsidiary is consists of cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84
(x) each of the Borrower and its Subsidiaries may lease (as lessee) real or personal property (so long as any such lease does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv));
(xi) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business;
(xii) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xiv) each of the Borrower and its Subsidiaries may enter into sale-lease-back transactions with respect to owned Hotel Properties (including the Designated Hotel Properties), so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xvi) each of the Borrower and its Subsidiaries may grant leases or sub-leases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(xvii) each of the Borrower and its Subsidiaries may sell Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as each such sale is for cash and at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be); and
(xviii) each of the Borrower and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one another so long as any such license by the Borrower or any other Credit Party in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that the security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any other Credit Party pursuant to the Security Agreement in the intellectual property covered by such licenseLeaseback. To the extent the Required Banks Lenders waive the provisions of this Section 9.02 10.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 10.02 (other than to the Borrower Company or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the ABL Loan Collateral Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect and/or evidence the foregoing. Notwithstanding anything to the contrary contained above in this Section 10.02 or elsewhere in this Agreement at any time when an Event of Default has occurred and is continuing, no Loan Collateral may be sold, transferred or otherwise disposed of by any Qualified Credit Party (other than sales of inventory in the ordinary course of business).
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Each Credit Party will not, and will not permit any of its their respective Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter into any sale-lease-back transactionsSale Leaseback, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets of any Person constituting all or substantially all of the property and assets of such Person or assets constituting a business unit, line of business or division of such Person, except that: 112 #93457508v14
(a) [Reserved]; (b) the Company and its Subsidiaries may sell inventory and other than purchases or other acquisitions of inventory, materials and equipment assets (excluding accounts receivable) in the ordinary course of business; (c) of any Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(ii) each of the Borrower Company and its Subsidiaries may liquidate or otherwise dispose of obsolete or worn-out property in the ordinary course of business business; (d) transactions to the extent permitted by Section 10.01, 10.03 or 10.05; (e) the Company and its Subsidiaries may convey, sell, lease or otherwise dispose of any equipment its assets, so long as (i) no Event of Default then exists or materials whichwould result therefrom, (ii) each such conveyance, sale, lease or disposition is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value (measured at the time the contract for such asset sale is entered into), (iii) the consideration received by the Company or such Subsidiary consists of at least 75% (or, in the reasonable judgment case of ABL Priority Collateral, 100%) cash or Cash Equivalents (and is paid at the time of the closing of such Personsale), (provided that, for the purposes of this clause (iii), (A) any liabilities (as shown on the Company’s or such Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Company or such Subsidiary, other than liabilities constituting Indebtedness subordinated in right of payment to the Loans that are obsolete assumed by the transferee with respect to the applicable conveyance, sale, lease or worn out;
disposition, (B) any securities received by the Company or such Subsidiary from such transferee that are converted by the Company or such Subsidiary into cash (to the extent of the cash received) within one hundred and eighty (180) days following the closing of the applicable transaction, and (C) any Designated Non-Cash Consideration received in respect of such conveyance, lease sale or disposition having a Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) each that is at that time outstanding, not in excess of the Borrower greater of $20,000,000 and 1.5% of Consolidated Total Assets of the Company and its Subsidiaries for the most recently ended Test Period at 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 (other than in respect of a disposition of ABL Priority Collateral)), and (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 5.02(c); provided, however, in no event shall (i) all or substantially all of the assets of the Company and its Subsidiaries (taken as a whole) be sold pursuant to this clause (e) or (ii) all or substantially all of the Coffeyville Facility or the Dubuque Facility (or the Equity Interests of any Subsidiary that owns the Coffeyville Facility or the Dubuque Facility) be sold pursuant to this clause (e); (f) the Company and its Subsidiaries may lease (as lessee) or license (as licensee) real or personal property (so long as any such lease or license does not create a CapitalizedFinance Lease Obligation except to the extent permitted by Section 10.04(d)); (g) the Company and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction; (h) the Company and its Subsidiaries may grant licenses, sublicenses, leases or subleases to other Persons not materially interfering with the conduct of the business of the Company or 113 #93457508v14 any of its Subsidiaries, in each case so long as no such grant otherwise affects the Collateral Agent’s security interest in the asset or property subject thereto; (i) the Company or any Subsidiary of the Company may convey, sell or otherwise transfer all or any part of its business, properties and assets to any Credit Party, so long as any security interests granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer) and all actions required to maintain said perfected status have been taken; (j) any Subsidiary of the Company may merge or consolidate with and into, or be dissolved or liquidated into, any Credit Party (except that ABL Priority Collateral may only be transferred among Borrowers), so long as (i) in the case of any such merger, consolidation, dissolution or liquidation involving the Company, the Company is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, (ii) in the case of any such merger, consolidation, dissolution or liquidation involving a Borrower, such Borrower is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, (iii) in all other cases, a Credit Party is the surviving or continuing corporation of any such merger, consolidation, dissolution or liquidation, and (iv) any security interests granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, consolidation, dissolution or liquidation) and all actions required to maintain said perfected status have been taken; (k) any Subsidiary of the Company that is not a Credit Party may merge or consolidate with and into, or be dissolved or liquidated into, any other Subsidiary of the Company that is not a Credit Party, so long as (i) in the case of any such merger, consolidation, dissolution or liquidation involving a Wholly Owned Subsidiary of the Company, a Wholly Owned Subsidiary of the Company is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, and (ii) to the extent that the Collateral Agent has a pledge of the Equity Interests of either of the Subsidiaries subject to such transaction pursuant to the Security Agreement, such pledge shall continue in the Equity Interests of the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation and all actions required to maintain said pledge have been taken; (l) Permitted Acquisitions (including by merger) may be consummated in accordance with the requirements of Section 9.13; (m) the Credit Parties and their respective Subsidiaries may liquidate or otherwise dispose of Cash Equivalents in the ordinary course of business, in each case for cash at Fair Market Value; (n) [reserved]; and (o) the Company and its Subsidiaries may engage in Sale Leasebacks (other than the capital stock in respect of any Subsidiary Guarantor and any Designated Hotel PropertyABL Priority Collateral), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale Sale Leaseback is in an arm'sarm’s-length transaction and the Borrower Company or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be)Fair Market Value, (iii) the consideration received by the Company or such Subsidiary consists of at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and Cash Equivalents and is paid at the time of the closing of such sale, Sale Leaseback and (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) the aggregate amount of the cash and non-cash proceeds received from all assets sold Sale Leasebacks pursuant to this clause (iiio) shall not exceed $20,000,000 in any fiscal year of the Borrower;
(iv) each of the Borrower and its Subsidiaries may sell the Designated Hotel Properties (other than pursuant to a sale-leaseback transaction), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Ventures, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84
(x) each of the Borrower and its Subsidiaries may lease (as lessee) real or personal property (so long as any such lease does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv));
(xi) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business;
(xii) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xiv) each of the Borrower and its Subsidiaries may enter into sale-lease-back transactions with respect to owned Hotel Properties (including the Designated Hotel Properties), so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xvi) each of the Borrower and its Subsidiaries may grant leases or sub-leases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(xvii) each of the Borrower and its Subsidiaries may sell Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as each such sale is for cash and at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be); and
(xviii) each of the Borrower and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one another so long as any such license by the Borrower or any other Credit Party in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that the security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any other Credit Party pursuant to the Security Agreement in the intellectual property covered by such license10,000,000. To the extent the Required Banks waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 (other than to the Borrower or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.114 #93457508v14
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Parent and the Company will not, and will not permit any of its the Company’s Restricted Subsidiaries to, wind up, liquidate or dissolve its affairs or enter merge or consolidate into or with any transaction of merger or consolidationPerson, or convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter into any sale-lease-back leaseback transactions, or purchase or otherwise acquire an Acquired Entity or Business; except, that:
(in one or a series of related transactionsa) any part each of the property or assets (other than purchases or other acquisitions of inventory, materials Company and equipment its Restricted Subsidiaries may sell inventory in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(iib) each of the Borrower Company and its Restricted Subsidiaries may liquidate or otherwise dispose of obsolete or worn-out property in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete or worn outbusiness;
(iiic) Investments may be made to the extent permitted by Section 10.05;
(d) each of the Borrower Company and its Restricted Subsidiaries may sell assets (other than the capital stock including by way of any Subsidiary Guarantor and any Designated Hotel Property), merger or consolidation or in connection with sale-leaseback transactions) so long as (i) no Default or Event of Default then exists has occurred and is continuing or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower Company or the respective Restricted Subsidiary receives at least fair market value (Fair Market Value as determined in good faith by the Borrower or such Subsidiary, as the case may be)Company, (iii) with respect to any such transaction in which the purchase price is in excess of $3,000,000, the consideration received by the Company or such Restricted Subsidiary consists of at least 75% of the total consideration received by the Borrower cash or such Subsidiary is cash and is Cash Equivalents paid at the time of the closing of such sale; provided, however, that for the purposes of this clause (iii), (A) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the Obligations or that are owed to the Company or any Restricted Subsidiary) of the Company or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or the notes thereto) that are assumed by the transferee of any such assets and for which the Company and/or its applicable Restricted Subsidiary have been validly released by all relevant creditors in writing, (B) the amount of any trade-in value applied to the purchase price of any replacement asses acquired in connection with such disposition, (C) any securities received by the Company or any Restricted Subsidiary from such transferee that are converted by such Person 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 and (D) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (D) that is at such time outstanding, not to exceed the greater of (1) $7,500,000 and (2) 10% of Consolidated EBITDA as of the last day of the most recent Test Period at 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, and (iv) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(f) and (v) the aggregate amount 5.02; provided, that no capital stock or other Equity Interests of the proceeds received from all assets any Restricted Subsidiary shall be sold pursuant to this clause (iiid) shall unless (A) all of the capital stock or other Equity Interests of such Restricted Subsidiary are sold in accordance with this clause (d) or (B) such sale is a sale of less than 100% of the capital stock or other Equity Interests of an Excluded Subsidiary; except, that the aggregate Fair Market Value of all such sales of capital stock or other Equity Interests pursuant to this clause (B) does not exceed $20,000,000 in any fiscal year 2.5% of Consolidated Total Assets of the BorrowerCompany and its Restricted Subsidiaries as of the date of any such sale;
(ive) each of the Borrower Company and its Subsidiaries may sell the Designated Hotel Properties (other than pursuant to a sale-leaseback transaction), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Ventures, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84
(x) each of the Borrower and its Restricted Subsidiaries may lease (as lessee), sublease (as sublessee) or license (as licensee) real or personal property (so long as any such lease or license does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv10.04(d));
(xif) each of the Borrower Company and its Restricted Subsidiaries may make sales of inventory sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(xii) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xivg) each of the Borrower Company and its Restricted Subsidiaries may enter into sale-lease-back transactions grant licenses, sublicenses, leases or subleases (including with respect to owned Hotel Properties intellectual property, to the extent such license, sublicense, lease or sublease is non-exclusive) to other Persons in the ordinary course of business not materially interfering with the conduct of the business of the Company or any of its Restricted Subsidiaries;
(including h) the Designated Hotel Properties)Company or any Restricted Subsidiary of the Company may convey, sell or otherwise transfer all or any part of its business, properties and assets to any Borrower, so long as each such transaction (w) is any security interests granted to the Collateral Agent for at least 75% in cash and is paid at the time benefit of the closing of such transaction, Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiaryincluding, as the case may be), (y) all of as same may be replaced by the Net Sale Proceeds therefrom are applied as required by Section 4.02(ftransferee Borrower) and perfected (zto at least the same extent as in effect immediately prior to such transfer) no Default and all actions required to maintain or Event of Default then exists or would result therefromrenew said perfected status have been taken;
(xvi) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Restricted Subsidiary of the Borrower Company may merge or consolidate with and into, or be dissolved or liquidated into, any Borrower, so long as (i) in the case of any such merger, consolidation, dissolution or liquidation involving the Company, the Company is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, (ii) in the case of any such merger, consolidation, dissolution or liquidation involving a Borrower, a Borrower is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, and (iii) all actions required to create or maintain perfected Liens in respect of assets required to be Collateral have been taken;
(j) Permitted Acquisitions may be consummated, including by way of merger or consolidation, in accordance with the requirements of Section 9.16;
(k) each of the Company and its Restricted Subsidiaries may liquidate or otherwise dispose of Cash Equivalents, in each case for cash or Cash Equivalents;
(l) Liens may be granted to the extent permitted by Section 10.01;
(m) any involuntary loss, damage or destruction of property and the disposition of the assets so damaged or destroyed shall be permitted;
(n) any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of use of property shall be permitted;
(o) the lapse, abandonment or cancellation of registered or pending patents, trademarks and other intellectual property of the Company and its Restricted Subsidiaries shall be permitted in the reasonable business judgment of the Company or such Restricted Subsidiary;
(p) any Restricted Subsidiary of the Company that is not a Credit Party may be merged, consolidated or amalgamated with and into, or be dissolved or liquidated into, or transfer any of its assets to, any Restricted Subsidiary of the Borrower Company that is not a Credit Party, so long as any security interests required to be granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents or any Section 9.12 in the Equity Interests of such Restricted Subsidiary Guarantorshall remain in full force and effect, or as the case may be, be granted, and perfected and enforceable and all actions required to maintain or create said perfected status have been taken;
(q) Dividends may be paid to the extent permitted by Section 10.03;
(r) the discount of Inventory, accounts receivable or notes receivable in the ordinary course of business or the conversion of accounts receivable to notes receivable may be made, in each case, consistent with past practices prior to the Effective Date;
(s) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings may be made;
(t) the Acquisition may be consummated; and
(u) Parent may merge or consolidate with and into, or be dissolved or liquidated into, any direct or indirect parent of Parent (“New Parent”) so long as (i) as a result of such merger, consolidation, liquidation or dissolution, New Parent shall directly own 100% of the Borrower or Equity Interests of the respective Subsidiary Guarantor is the surviving corporation of any such transaction, Company and (ii) in the case of any concurrently with such transaction involving merger, New Parent signs a non-Wholly-Owned Subsidiary, the only consideration paid Joinder Agreement (and pursuant to third parties in connection therewith are shares of common stock which New Parent agrees to become “Parent” hereunder and subject to all of the Borrower rights and cash in an aggregate amount obligations of Parent hereunder) along with such other security documents as may be reasonably requested by the Agents, and otherwise complies with Section 9.12; provided, that, for all the avoidance of doubt, concurrent with such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between merger, consolidation or among the Borrower and the Subsidiary Guarantorsliquidation, all Liens granted pursuant actions required to give the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xvi) each of the Borrower and its Subsidiaries may grant leases or sub-leases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(xvii) each of the Borrower and its Subsidiaries may sell Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as each such sale is for cash and at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be); and
(xviii) each of the Borrower and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one another so long as any such license by the Borrower or any other Credit Party in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that the Collateral Agent a perfected security interest in such patentsthe Equity Interests of the Company shall have been taken, trademarksincluding, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any other Credit Party pursuant without limitation, that New Parent has delivered to the Security Agreement Collateral Agent certificates, together with undated powers (or other documents of transfer acceptable to the Collateral Agent) endorsed in blank by New Parent, representing the intellectual property covered by Equity Interests of the Company. For the avoidance of doubt, such licensetransaction shall not be deemed a “Change of Control”. To the extent the Required Banks Lenders waive the provisions of this Section 9.02 10.02 with respect to the sale sale, transfer or disposition of any Collateral, or any Collateral is sold sold, transferred or disposed of as permitted by this Section 9.02 10.02 (other than to the Borrower or a Subsidiary thereofCredit Party), such Collateral shall be sold sold, transferred or disposed of free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall be are hereby authorized and directed to take any actions deemed appropriate reasonably requested by the Borrowers in order to effect or evidence the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its property or assetsassets (other than sales of inventory in the ordinary course of business), or enter into any sale-lease-back leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials materials, equipment, goods and equipment services in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.0710.07;
(ii) each of the Borrower and its Subsidiaries may liquidate or otherwise dispose of obsolete or worn-out property in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete or worn outbusiness;
(iii) each of Investments may be made to the extent permitted by Section 10.05;
(iv) the Borrower and its Subsidiaries may sell assets (other than the capital stock or other Equity Interests of any Wholly-Owned Subsidiary, unless all of the capital stock or other Equity Interests of such Wholly-Owned Subsidiary Guarantor and any Designated Hotel Propertyare sold in accordance with this clause (iv)), so long as (iv) no Default or Event of Default then exists or would result therefrom, (iiw) each such sale is in an arm'sarm’s-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be)Fair Market Value, (iiix) at least 75% of the total consideration received by the Borrower or such Subsidiary is in connection with any Asset Sale shall consist of at least 75% cash and is paid at the time of the closing of such sale, (ivy) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(f5.02(e) and (vz) the aggregate amount of the cash and non-cash proceeds received from all assets sold pursuant to this clause (iiiiv) shall not exceed $20,000,000 3,000,000 in any fiscal year Fiscal Year of Holdings (for this purpose, using the BorrowerFair Market Value of property other than cash);
(ivv) each of the Borrower and its Subsidiaries may sell the Designated Hotel Properties lease (other than pursuant to a sale-leaseback transaction), as lessee) or license (as licensee) real or personal property (so long as (i) no Default any such lease or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and license does not create a Capitalized Lease Obligation except to the extent) required extent permitted by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b10.04(iv), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests discount, in each case without recourse and in the Existing Red Lion Joint Venturesordinary course of business, so long as (i) no Default accounts receivable arising in the ordinary course of business, but only in connection with the compromise or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing collection thereof and the other transactions contemplated hereby had been consummated on the first day not as part of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi)financing transaction;
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property)grant licenses, and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investmentsublicenses, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84
(x) each of the Borrower and its Subsidiaries may lease (as lessee) real or personal property (so long as any such lease does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv));
(xi) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business;
(xii) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xiv) each of the Borrower and its Subsidiaries may enter into sale-lease-back transactions with respect to owned Hotel Properties (including the Designated Hotel Properties), so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xvi) each of the Borrower and its Subsidiaries may grant leases or sub-leases subleases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries, in each case so long as no such grant otherwise affects the Collateral Agent’s security interest in the asset or property subject thereto;
(xviiviii) each the Borrower or any Subsidiary of the Borrower may convey, sell or otherwise transfer all or any part of its business, properties and assets to any Qualified Credit Party, so long as any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer) and all actions required to maintain said perfected status have been taken;
(ix) any Subsidiary of the Borrower may merge or consolidate with and into, or be dissolved or liquidated into, any Qualified Credit Party, so long as (i) in the case of any such merger, consolidation, dissolution or liquidation involving the Borrower, the Borrower is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, (ii) in all other cases, a Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor is the surviving or continuing corporation of any such merger, consolidation, dissolution or liquidation, and (iii) any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, consolidation, dissolution or liquidation) and all actions required to maintain said perfected status have been taken;
(x) any Foreign Subsidiary of the Borrower may be merged, consolidated or amalgamated with and into, or be dissolved or liquidated into, or transfer any of its assets to, any Wholly-Owned Foreign Subsidiary of the Borrower, so long as (i) such Wholly-Owned Foreign Subsidiary of the Borrower is the surviving or continuing entity of any such merger, consolidation, amalgamation, dissolution or liquidation and (ii) any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the Equity Interests of such Wholly-Owned Foreign Subsidiary and such Foreign Subsidiary shall remain in full force and effect and perfected and enforceable (to at least the same extent as in effect immediately prior to such merger, consolidation, amalgamation, dissolution, liquidation or transfer) and all actions required to maintain said perfected status have been taken;
(xi) Permitted Acquisitions may be consummated in accordance with the requirements of Section 9.15; and
(xii) Holdings and its Subsidiaries may sell liquidate or otherwise dispose of Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as each such sale is for cash and at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be); and
(xviii) each of the Borrower and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one another so long as any such license by the Borrower or any other Credit Party in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that the security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any other Credit Party pursuant to the Security Agreement in the intellectual property covered by such license. each case for cash at Fair Market Value; To the extent the Required Banks Lenders waive the provisions of this Section 9.02 10.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 10.02 (other than to the Borrower Holdings or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect and/or evidence the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Global Cash Access Holdings, Inc.)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its property or assetsassets (other than sales of inventory in the ordinary course of business), or enter into any sale-lease-back transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of leaseback transactions with any Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.076.07;
(ii) each of the Borrower and its Subsidiaries may liquidate or otherwise dispose of obsolete or worn-out property in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete or worn outbusiness;
(iii) each of Investments may be made to the extent permitted by Section 6.05;
(iv) the Borrower and its Subsidiaries may sell assets (other than the capital stock or other Equity Interests of any Wholly-Owned Subsidiary, unless all of the capital stock or other Equity Interests of such Wholly-Owned Subsidiary Guarantor and any Designated Hotel Propertyare sold in accordance with this clause (iv)), so long as (iu) no Default or Event of Default then exists or would result therefrom, (iiv) each such sale is in an arm'sarm’s-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be)Fair Market Value, (iiiw) at least 75% of the total consideration received by the Borrower or such Subsidiary is consists of at least 75% cash and is paid at the time of the closing of such sale, (ivx) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(f) and 2.13(c), (vy) the aggregate amount of the cash and non-cash proceeds received from all assets sold pursuant to this clause (iiiiv) shall not exceed $20,000,000 37,500,000 in any fiscal year of the Borrower;
Borrower (iv) each for this purpose, using the Fair Market Value of property other than cash); provided that any unused portion of this basket in any fiscal year of the Borrower may be utilized in the immediately succeeding fiscal year of the Borrower (but not in any fiscal year of the Borrower thereafter), with the portion so carried forward to be deemed utilized last in such immediately succeeding fiscal year of the Borrower and its Subsidiaries may sell (z) the Designated Hotel Properties (other than aggregate amount of the cash and non-cash proceeds received from all assets sold pursuant to a sale-leaseback transaction), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing shall not exceed $75,000,000 (for this purpose, using the calculations (in reasonable detail) required by this clause (ivFair Market Value of property other than cash);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Ventures, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84
(x) each of the Borrower and its Subsidiaries may lease (as lessee) or license (as licensee) real or personal property in the ordinary course of business (so long as any such lease or license does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv6.04(iv));
(xivi) each of the Borrower and each of its Subsidiaries may make sales of inventory sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(xiivii) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xiv) each of the Borrower and its Subsidiaries may enter into sale-lease-back transactions with respect to owned Hotel Properties (including the Designated Hotel Properties), so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xvi) each of the Borrower and its Subsidiaries may grant licenses, sublicenses, leases or sub-leases subleases to other Persons in the ordinary course of business and not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(xviiviii) each the Borrower or any Subsidiary of the Borrower may convey, sell or otherwise transfer all or any part of its business, properties and assets to the Borrower or to any Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor;
(ix) any Subsidiary of the Borrower (other than a Non-Recourse Entity or the Xxxxxx Xxx Servicer Entity) may merge or consolidate with and into, or be dissolved or liquidated into, the Borrower or any Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor, so long as (A) in the case of any such merger, consolidation, dissolution or liquidation involving the Borrower, the Borrower is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation and (B) in all other cases, a Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation;
(x) any Foreign Subsidiary of the Borrower may be merged, consolidated or amalgamated with and into, or be dissolved or liquidated into, or transfer any of its assets to, any Wholly-Owned Foreign Subsidiary of the Borrower, so long as such Wholly-Owned Foreign Subsidiary of the Borrower is the surviving or continuing entity of any such merger, consolidation, amalgamation, dissolution or liquidation;
(xi) Permitted Acquisitions may be consummated in accordance with the requirements of Section 6.05(xii) and Permitted Foreign Acquisitions may be consummated in accordance with the requirements of Section 6.05(xxi);
(xii) the Borrower and its Subsidiaries may sell liquidate or otherwise dispose of Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as each such sale is in the ordinary course of business for cash or Cash Equivalents;
(xiii) the Borrower and at fair market value its Subsidiaries may convey, sell or otherwise transfer any Servicing Rights with respect to Residential Mortgage Loans owned or controlled by Xxxxxx Mae to the Xxxxxx Xxx Servicer Entity;
(as determined in good faith by xiv) to the extent that an MSR Lender which is a Government Sponsored Entity exercises its MSR Call Option, the Borrower or such Subsidiarythe applicable Subsidiary of the Borrower may sell the Servicing Rights or all of the Equity Interests of the Xxxxxx Mae Servicer Entity, as the case may be, that are subject to such MSR Call Option so long as the Net Sale Proceeds therefrom are applied in accordance with Section 2.13(c);
(xv) Subsidiaries of the Borrower may convey, sell or otherwise transfer any Residential Mortgage Loans originated and owned by such Subsidiary to an Approved Takeout Investor in accordance with the terms of the respective Short-Term Warehouse Documents;
(xvi) any Seller may sell Transferred Assets to a Non-Recourse Servicer Advance Debt Entity in accordance with the terms of the applicable Receivables Purchase Agreement in connection with the incurrence by such Non-Recourse Servicer Advance Debt Entity of Indebtedness permitted by Section 6.04(xii); provided that such Seller shall have received aggregate cash proceeds from such Non-Recourse Servicer Advance Debt Entity at the time of the respective transfer of not less than 70% of the face amount of the Transferred Receivables that constitute Transferred Assets and with the balance of such purchase price to be paid through the issuance by such Non-Recourse Servicer Advance Debt Entity of a Subordinated Seller Advance Note;
(xvii) Green Tree SerVertis Acquisition LLC or a similarly structured Subsidiary of the Borrower may acquire Residential Mortgage Loans for the sole purpose of, simultaneously with such acquisition, assigning (and may assign) all of its right, title and interest in such Residential Mortgage Loans to either (x) a trust or other securitization entity or a similarly structured entity created on behalf of the SerVertis Funds or a similarly structured entity or (y) any Affiliate of the SerVertis Funds or a similarly structured entity (other than the Borrower or any of its Subsidiaries), including without limitation, SerVertis REO LLC, a Delaware limited liability company, provided that such acquisition is funded solely with cash or other proceeds received, either directly or indirectly, by Green Tree SerVertis Acquisition LLC or such other similarly structured Subsidiary of the Borrower from the SerVertis Funds or any Affiliate of the SerVertis Funds or a similarly structured entity (other than the Borrower or any of its Subsidiaries); and
(xviii) each of the Borrower and its Subsidiaries may, or any Subsidiary may in the ordinary course of businessbusiness convey, license, as licensor sell or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one another so long as any such license by the Borrower or any other Credit Party in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that the security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting dispose of a Lien by the Borrower or any other Credit Party pursuant to the Security Agreement in the intellectual property covered by such licenseREO Property. To the extent the Required Banks Lenders waive the provisions of this Section 9.02 6.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 6.02 (other than to the Borrower or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security DocumentsDocuments and, in the case of the sale of all of the Equity Interests of a Subsidiary Guarantor permitted by this Section 6.02 (other than to the Borrower or a Subsidiary thereof), such Subsidiary Guarantor shall be released from the Subsidiaries Guaranty, and the Administrative Agent and the Collateral Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing. In addition, any Collateral that is released or disposed of pursuant to the automatic release provisions of Section 2.06 of the Intercreditor Agreement shall be released or disposed of free and clear of the Liens created by the Security Documents.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Walter Investment Management Corp)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Parent will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any partnership, joint venture, or consummate a transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its property or assetsassets (other than sales of inventory in the ordinary course of business), or enter into any sale-lease-back leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower Borrowers and its their Subsidiaries shall be permitted to the extent not in violation of Section 9.078.07;
(ii) each of the Borrower Borrowers and its their Subsidiaries may liquidate or otherwise dispose of obsolete or worn-out property in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete or worn outbusiness;
(iii) each of Investments may be made to the Borrower extent permitted by Section 8.05;
(iv) the Borrowers and its their Subsidiaries may sell assets (other than the capital stock or other Equity Interests of any Wholly-Owned Subsidiary, unless all of the capital stock or other Equity Interests of such Wholly-Owned Subsidiary Guarantor and any Designated Hotel Propertyare sold in accordance with this clause (iv)), so long as (iv) no Default or Event of Default then exists or would result therefrom, (iiw) each such sale is in an arm'sarm’s-length transaction and the such Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be)Fair Market Value, (iiix) at least 75% of the total consideration received by the Borrower Borrowers or such Subsidiary is consists of at least 90% cash and is paid at the time of the closing of such sale, (ivy) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(f4.02(d) and (vz) the aggregate amount of the cash and non-cash proceeds received from all assets sold pursuant to this clause (iiiiv) shall not exceed $20,000,000 7,500,000 in any fiscal year of the Borrower;
Parent (iv) each of the Borrower and its Subsidiaries may sell the Designated Hotel Properties (other than pursuant to a sale-leaseback transaction), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing z), using the calculations (in reasonable detail) required by this clause (ivFair Market Value of property other than cash);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower Borrowers and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Ventures, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84
(x) each of the Borrower and its Subsidiaries may lease (as lessee) or license (as licensee) real or personal property (so long as any such lease or license does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv8.04(iv));
(xivi) each of the Borrower Borrowers and its their Subsidiaries may make sales of inventory sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(xii) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xivvii) each of the Borrower Borrowers and its Subsidiaries may enter into sale-lease-back transactions with respect to owned Hotel Properties (including the Designated Hotel Properties), so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xvi) each of the Borrower and its their Subsidiaries may grant licenses, sublicenses, leases or sub-leases subleases to other Persons not materially interfering with the conduct of the business of the Borrowers or any of their Subsidiaries, in each case so long as no such grant otherwise affects the Collateral Agent’s security interest in the asset or property subject thereto;
(a) any Credit Party may convey, sell or otherwise transfer all or any part of its business, properties and assets to another Credit Party, so long as any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer) and all actions required to maintain said perfected status have been taken, (b) any Credit Party may convey, sell or otherwise transfer all or any part of its business, properties and assets to a Foreign Subsidiary provided that the Fair Market Value of such business, properties and assets shall not exceed $1,000,000 in any fiscal year and (c) any Foreign Subsidiary may convey, sell or otherwise transfer all or any part of its business, properties and assets to a Credit Party.
(ix) any Subsidiary of a Borrower may merge or consolidate with and into, or be dissolved or liquidated into, such Borrower or any Wholly-Owned Domestic Subsidiary of its Subsidiariessuch Borrower which is a Subsidiary Guarantor, so long as (i) in the case of any such merger, consolidation, dissolution or liquidation involving such Borrower, such Borrower is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, (ii) in all other cases, a Wholly-Owned Domestic Subsidiary of such Borrower which is a Subsidiary Guarantor is the surviving or continuing corporation of any such merger, consolidation, dissolution or liquidation, and (iii) any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, consolidation, dissolution or liquidation) and all actions required to maintain said perfected status have been taken;
(xviix) each any Foreign Subsidiary of the a Borrower may be merged, consolidated or amalgamated with and into, or be dissolved or liquidated into, or transfer any of its Subsidiaries may sell Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) assets to, any Wholly-Owned Foreign Subsidiary of a Borrower, so long as each (i) such sale Wholly-Owned Foreign Subsidiary of a Borrower is the surviving or continuing entity of any such merger, consolidation, amalgamation, dissolution or liquidation and (ii) any security interests granted to the Collateral Agent for cash the benefit of the Secured Creditors pursuant to the Security Documents in the Equity Interests of such Wholly-Owned Foreign Subsidiary and such Foreign Subsidiary shall remain in full force and effect and perfected and enforceable (to at fair market value least the same extent as in effect immediately prior to such merger, consolidation, amalgamation, dissolution, liquidation or transfer) and all actions required to maintain said perfected status have been taken;
(as determined xi) Permitted Acquisitions may be consummated in good faith by accordance with the Borrower or such Subsidiary, as the case may be)requirements of Section 7.15; and
(xviiixii) each the Borrowers and their Subsidiaries may liquidate or otherwise dispose of the Borrower and its Subsidiaries may, Cash Equivalents in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one another so long as any such license by the Borrower or any other Credit Party in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that the security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any other Credit Party pursuant to the Security Agreement in the intellectual property covered by such licenseeach case for cash at Fair Market Value. To the extent the Required Banks Lenders waive the provisions of this Section 9.02 8.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 8.02 (other than to the Borrower Parent or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its property or assetsassets (other than sales of inventory in the ordinary course of business), or enter into any sale-lease-back leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the a Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.0711.07;
(ii) each of the a Borrower and its Subsidiaries may liquidate or otherwise dispose of obsolete, surplus or worn-out property in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete or worn outbusiness;
(iii) each of Investments may be made to the extent permitted by Section 11.05;
(iv) a Borrower and its Subsidiaries may sell assets (other than the capital stock or other Equity Interests of any Subsidiary Guarantor and any Designated Hotel PropertyWholly-Owned Subsidiary), so long as (iv) no Default or Event of Default then exists or would result therefrom, (iiw) each such sale is in an arm'sarm’s-length transaction and the such Borrower or the respective Subsidiary receives at least fair market value Fair Market Value, (as determined in good faith x) the consideration received by the such Borrower or such Subsidiary, as the case may be), (iii) Subsidiary consists of at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time within 90 days of the closing of such sale, (ivy) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(f6.02(e) and (vz) the aggregate amount of the cash and non-cash proceeds received from all assets sold pursuant to this clause (iiiiv) for all Borrowers shall not exceed $20,000,000 5,000,000 in any fiscal year of Holdings (for this purpose, using the BorrowerFair Market Value of property other than cash);
(ivv) each of the Borrower Borrowers and its their Subsidiaries may lease (as lessee) or license (as licensee) real or personal property (so long as any such lease or license does not create a Capitalized Lease Obligation except to the extent permitted by Section 11.04(iv));
(vi) each of the Borrowers and their Subsidiaries may sell or discount, in each case without recourse and in the Designated Hotel Properties ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(vii) each of the Borrowers and their Subsidiaries may grant licenses, sublicenses, leases or subleases to other than pursuant to Persons in the ordinary course of business and not materially interfering with the conduct of the business of a sale-leaseback transaction)Borrower or any of its Subsidiaries, in each case so long as (iv) no such grant contains non-disturbance or subordination agreements or otherwise affects the Collateral Agent’s security interest in the Collateral that is subject thereto, (w) no Default or Event of Default then exists or would result therefrom, (iix) each such sale grant is in an arms'-length arm’s-length transaction and the such Borrower or the respective Subsidiary receives at least fair market value Fair Market Value, (as determined in good faith y) the consideration received by the such Borrower or such Subsidiary, as the case may be), (iii) Subsidiary consists of at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (ivz) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(f6.02(e);
(viii) any Subsidiary of a Borrower may convey, sell or otherwise transfer all or any part of its business, properties and (v) (I) based on calculations made by the assets to a Borrower on or to any Subsidiary of a Pro Forma Basis after giving effect Borrower which is a Credit Party, so long as with respect to the respective saleCollateral, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior any security interests granted to the date Collateral Agent for the benefit of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested Secured Creditors pursuant to the terms thereofSecurity Documents in the Collateral so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer) and all actions required to maintain said perfected status have been taken;
(ix) any Subsidiary of a Borrower may merge or consolidate with and into, or be dissolved or liquidated into, a Borrower or any Wholly-Owned Domestic Subsidiary of a Borrower which is a Subsidiary Guarantor, so long as (i) in the case of any such merger, consolidation, dissolution or liquidation involving a Borrower, such Borrower shall instead use is the historical financial results surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, (ii) in all other cases, a Wholly-Owned Domestic Subsidiary of a Borrower which is a Subsidiary Guarantor is the surviving or continuing corporation of any such merger, consolidation, dissolution or liquidation, and (iii) any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, consolidation, dissolution or liquidation) and all actions required to maintain said perfected status have been taken;
(x) any Foreign Subsidiary of a Borrower may be merged, consolidated or amalgamated with and into, or be dissolved or liquidated into, or transfer any of its assets to, any Wholly-Owned Foreign Subsidiary of a Borrower, so long as (i) such Wholly-Owned Foreign Subsidiary of such Borrower is the surviving or continuing entity of any such merger, consolidation, amalgamation, dissolution or liquidation and (ii) any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the Equity Interests and other assets of such Wholly-Owned Foreign Subsidiary and such Foreign Subsidiary shall remain in full force and effect and perfected and enforceable (to at least the same extent as in effect immediately prior to such merger, consolidation, amalgamation, dissolution, liquidation or transfer) and all actions required to maintain said perfected status have been taken;
(xi) Permitted Acquisitions may be consummated in accordance with the requirements of Section 10.16;
(xii) a Borrower and its Subsidiaries for may liquidate or otherwise dispose of Cash Equivalents in the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day ordinary course of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof)business, in each case for cash at Fair Market Value and at fair market value (as determined in good faith a transaction not otherwise prohibited by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i)other terms of this Agreement;
(vixiii) each of the a Borrower and its Subsidiaries may sell all or a portion dispose of their equity interests in the Existing Red Lion Joint Venturesproperty pursuant to sale-leaseback transactions, so long as (iv) no Default or Event of Default then exists or would result therefrom, (iiw) each such sale transaction is in an arms'-length arm’s-length transaction and the such Borrower or the respective Subsidiary receives at least fair market value Fair Market Value, (as determined in good faith x) the consideration received by the such Borrower or such Subsidiary, as the case may be), (iii) Subsidiary consists of at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such salecash, (ivy) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(f6.02(e) and (vz) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event Fair Market Value of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date all property so disposed of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are shall not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of exceed $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained 1,500,000 in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84
(x) each of the Borrower and its Subsidiaries may lease (as lessee) real or personal property (so long as any such lease does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv));
(xi) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business;
(xii) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07fiscal year;
(xiv) each sale or issuance of the Borrower and its Subsidiaries may enter into sale-lease-back transactions with respect Equity Interests to owned Hotel Properties (including the Designated Hotel Properties)Holdings, so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transactionParent, (x) is at fair market value (as determined in good faith by the any Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;any Subsidiary Guarantor shall be permitted; and
(xv) the Borrower may transfer any sale, dissolution, liquidation, or winding up of the Dissolution Subsidiaries shall be permitted, provided that the proceeds of the property and assets of the Dissolution Subsidiaries pursuant to such dissolution shall be distributed to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xvi) each of the Borrower and its Subsidiaries may grant leases or sub-leases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(xvii) each of the Borrower and its Subsidiaries may sell Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as each such sale is for cash and at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be); and
(xviii) each of the Borrower and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one another so long as any such license by the Borrower or any other Credit Party in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that the security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any other Credit Party pursuant to the Security Agreement in the intellectual property covered by such licenseParty. To the extent the Required Banks Lenders waive the provisions of this Section 9.02 11.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 11.02 (other than to the Borrower Holdings or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security DocumentsDocuments (provided that such Lien shall continue as to any proceeds of such sale to the extent such assets constituted Collateral), and the Administrative Agent and the Collateral Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (STG Group, Inc.)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower No Credit Agreement Party will, nor will not, and will not it permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter into any sale-lease-back leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(ii) each of the Borrower and its Subsidiaries may in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete or worn out;
(iii) each of the Borrower and its Subsidiaries may sell assets (other than the capital stock of any Subsidiary Guarantor and any Designated Hotel Propertyof the Borrower), so long as (iv) no Default or Event of Default then exists or would result therefrom, (iiw) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iiix) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (ivy) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(f4.02(e) and (vz) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iiiii) shall not exceed $20,000,000 2,000,000 in any fiscal year of the BorrowerHoldings;
(iv) each of the Borrower and its Subsidiaries may sell the Designated Hotel Properties (other than pursuant to a sale-leaseback transaction), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv);
(v) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Ventures, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84;
(xiv) each of the Borrower and its Subsidiaries may lease (as lessee) real or personal property (so long as any such lease does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv));
(xiv) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business;
(xii) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xivvi) each of the Borrower and its Subsidiaries may enter into salesell obsolete, uneconomic or worn-lease-back transactions with respect to owned Hotel Properties (including out equipment or materials in the Designated Hotel Properties)ordinary course of business, so long as each such transaction (w) is for at least 75% in cash and is paid at provided that the time aggregate amount of the closing proceeds -------- received from all assets sold pursuant to this clause (vi) shall not exceed $500,000 in any fiscal year of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefromHoldings;
(xvvii) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash its Subsidiaries may sell or discount, in an aggregate amount for all such transactions not to exceed each case without recourse and in the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) compromise or collection thereof and (iii) in the case not as part of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred)financing transaction;
(xviviii) each of the Borrower and its Subsidiaries may grant leases or sub-leases subleases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(xviiA) each the Xxxxxx Subsidiary may sell the Xxxxxx Property (i) in accordance with the terms of the Borrower Xxxxxx Documents, Annex I to the Acquisition Agreement and its Subsidiaries may sell Cash Equivalents permitted to be held by them the Xxxxxx Agreement or (ii) pursuant to Section 9.05(ii) a sale-leaseback transaction, so long as each as, in the case of preceding clause (ii), (w) no Default or Event of Default then exists or would result therefrom, (x) such sale sale-leaseback transaction is for cash in an arm's-length transaction and the Borrower receives at least fair market value (as determined in good faith by the Borrower), (y) the total consideration received by the Borrower or is cash and is paid at the time of the closing of such Subsidiarysale, and (z) to the extent that such sale-leaseback transaction results in a Capitalized Lease Obligation, such Capitalized Lease Obligation is permitted under Section 9.04(iv), and (B) the capital stock of the Xxxxxx Subsidiary may be sold in accordance with Annex I to the Acquisition Agreement and the Xxxxxx Agreement, provided, however, the cash proceeds received from any transaction -------- ------- pursuant to this clause (ix) shall be applied and/or reinvested as (and to the case may beextent) required by Section 4.02(h);
(x) the Borrower shall be permitted to sell to Wakefern the shares of Wakefern's Common C stock held by the Borrower in accordance with Section 4 of Article IX of the By-Laws of Wakefern but only to the extent the Borrower's investment in Wakefern exceeds the minimum investment required under the Wakefern Investment Policy; and
(xviiixi) each of the Borrower and its Subsidiaries maymay enter into sale-leaseback transactions solely with respect to new buildings for supermarkets opened by the Borrower after the Initial Borrowing Date, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one another so long as any (u) no Default or Event of Default then exists or would result therefrom, (v) each such license sale-leaseback transaction is in an arm's-length transaction and the Borrower receives at least fair market value (as determined in good faith by the Borrower), (w) the total consideration received by the Borrower or any other Credit Party in its capacity is cash and is paid at the time of the closing of such sale, (x) the Net Sale Proceeds therefrom are applied and/or reinvested as licensor is permitted (and to be assigned the extent) required by Section 4.02(e), (y) the aggregate amount of proceeds received from all sale-leaseback transactions pursuant to the Security Agreement this clause (xi) shall not exceed $10,000,000 in any fiscal year of Holdings and (z) to the extent that the security interest any such sale-leaseback transaction results in a Capitalized Lease Obligation, such patents, trademarks, copyrights and know-how Capitalized Lease Obligation is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any other Credit Party pursuant to the Security Agreement in the intellectual property covered by such licensepermitted under Section 9.04(iv). To the extent the Required Banks Lenders waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 (other than to the Borrower Holdings or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Company will not, and will not permit any of its Subsidiaries to, (i) wind up, liquidate or dissolve its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or (ii) convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter into any sale-lease-back leaseback transactions, or (iii) make any Investment, purchase all or otherwise acquire (in one or a series of related transactions) any part substantially all of the property assets of, or the assets constituting a business, division or product line of, any Person or make any Capital Expenditures, except that:
(a) Capital Expenditures by the Company and its Subsidiaries shall be permitted (other than purchases or other acquisitions of inventory, materials Capital Expenditures constituting a Permitted Acquisition unless permitted under Section 10.02(k));
(b) the Company and equipment its Subsidiaries may sell inventory in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(iic) each of the Borrower Company and its Subsidiaries may liquidate or otherwise dispose of obsolete, expired or worn-out property in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete or worn outbusiness;
(iiid) each of Investments may be made to the Borrower extent permitted by Section 10.05;
(e) the Company and its Subsidiaries may sell assets (other than the capital stock or other Equity Interests of any Wholly-Owned Subsidiary, unless all of the capital stock or other Equity Interests of such Wholly-Owned Subsidiary Guarantor and any Designated Hotel Propertyare sold in accordance with this clause (e)), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm'sarm’s-length transaction and the Borrower Company or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be)Fair Market Value, (iii) the consideration received by the Company or such Subsidiary consists of at least 75% of the total consideration received by the Borrower cash or such Subsidiary is cash Cash Equivalents and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f5.02(b) and (v) the aggregate amount of the cash and non-cash proceeds received from all assets sold pursuant to this clause (iiie) shall not exceed $20,000,000 10,000,000 in any fiscal year of the BorrowerCompany (for this purpose, in each case, using the Fair Market Value of property other than cash);
(ivf) each of the Borrower Company and its Subsidiaries may lease (as lessee) or license (as licensee) real or personal property (so long as any such lease or license does not create a Capitalized Lease Obligation except to the extent permitted by Section 10.04(d));
(g) the Company and its Subsidiaries may sell or discount, in each case without recourse and in the Designated Hotel Properties ordinary course of business, (i) accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction, (ii) accounts receivable arising in the ordinary course of business that do not constitute Eligible Accounts so long as such sale or discount is not part of any financing transaction and (iii) letters of credit from customers in order to collect payments in respect of an account receivable earlier than otherwise due in the ordinary course of business and not as part of any financing transaction;
(h) the Company and its Subsidiaries may grant licenses, sublicenses, leases or subleases to other Persons not materially interfering with the conduct of the business of the Company or any of its Subsidiaries, in each case so long as no such grant otherwise affects in any material respect the Collateral Agent’s security interest in the asset or property subject thereto (other than in respect of any Permitted Liens related thereto);
(i) (t) the U.S. Borrowers may transfer assets between or among one another, (u) the U.S. Borrowers may transfer assets (other than Eligible Accounts and Eligible Inventory) to a U.S. Subsidiary Guarantor, (v) the U.S. Subsidiary Guarantors may transfer assets between or among one another or to a U.S. Borrower, (w) the Canadian Borrowers may transfer assets between or among one another, to a U.S. Borrower or (other than Eligible Accounts and Eligible Inventory) to a Canadian Subsidiary Guarantor, (x) the Canadian Subsidiary Guarantors may transfer assets between or among one another or to a Canadian Borrower or a U.S. Borrower, (y) any Subsidiary of the Company that is not a Credit Party may transfer assets between or among one another or to a Credit Party and (z) the Credit Parties may (I) transfer spares, equipment and inventory to be used for internal research and development, customer demonstrations, homologation and other general business purposes to any Subsidiary of the Company in the ordinary course of business and on a basis consistent with past practice and (II) assign purchase orders and customer contracts in the ordinary course of business to comply with applicable law or otherwise in such Credit Party’s reasonable business judgment to address legal, trade, regulatory or tax considerations in the ordinary course of business, in each clause (other than with respect to preceding clause (z) unless such assets are transferred to another Credit Party) so long as any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer) and all actions required to maintain said perfected status have been taken;
(j) (v) any Domestic Subsidiary of the Company may be merged, consolidated or liquidated with or into a sale-leaseback transaction), U.S. Credit Party (so long as (i) no Default in the case of any such merger, consolidation or Event of Default then exists or would result therefromliquidation involving the Company, the Company is the surviving Person, (ii) in the case of any such merger, consolidation or liquidation involving another U.S. Borrower, a U.S. Borrower is the surviving Person, and (iii) in the case of any such other merger, consolidation or liquidation, a U.S. Credit Party is the surviving Person), (w) any Canadian Subsidiary may be merged, amalgamated, consolidated or liquidated with or into (i) any Canadian Credit Party (so long as (A) in the case of any such merger, amalgamation, consolidation or liquidation involving a Canadian Borrower, a Canadian Borrower is the surviving Person, and (B) in the case of any such other merger, amalgamation, consolidation or liquidation, a Canadian Credit Party is the surviving Person), (ii) in the case of any Canadian Subsidiary that is not a Canadian Borrower, any U.S. Credit Party (so long as such U.S. Credit Party is the surviving Person) or (iii) in the case of Canadian Subsidiary that is a Canadian Borrower, any U.S. Borrower (so long as such U.S. Borrower is the surviving Person), (x) any Domestic Subsidiary of the Company that is not a U.S. Credit Party may be merged, consolidated or liquidated with or into any other Domestic Subsidiary of the Company that is not a U.S. Credit Party, (y) any Canadian Subsidiary of the Company that is not a Canadian Credit Party may be merged, amalgamated, consolidated or liquidated with or into another Canadian Subsidiary of the Company that is not a Canadian Credit Party, and (z) any Foreign Subsidiary of the Company (other than a Canadian Subsidiary) may be merged, consolidated or liquidated with or into (i) any other Foreign Subsidiary of the Company (other than a Canadian Subsidiary, in each case so long as any security interests granted to the Collateral Agent for the benefit of the Secured Creditors in the assets (and Equity Interests) of any such sale is Person subject to any such transaction shall remain in an arms'-length transaction full force and the Borrower or the respective Subsidiary receives effect and perfected and enforceable (to at least fair market value the same extent as in effect immediately prior to such merger, amalgamation, consolidation or liquidation) and all actions required to maintain said perfected status have been taken or (ii) any Credit Party (so long as determined such Credit Party is the surviving Person);
(k) Permitted Acquisitions may be consummated in good faith accordance with the requirements of Section 9.13;
(l) the Company and its Subsidiaries may use or transfer cash or liquidate or otherwise dispose of Cash Equivalents for cash at Fair Market Value in a manner not prohibited by the Borrower terms of the Credit Documents;
(m) Dividends may be paid to the extent permitted by Section 10.03;
(n) the Company and its Subsidiaries may cancel or abandon intellectual property rights which are, in the reasonable business judgment of the Company or such Subsidiary, as no longer used or useful in, the case may be), (iii) at least 75% business of the total consideration received by the Borrower Company or such Subsidiary is cash Subsidiary;
(o) the Company and is paid at its Subsidiaries may dispose of property and assets to the time extent such property and assets were the subject of a casualty or condemnation proceedings upon the occurrence of the closing related Recovery Event;
(p) the Company and its Subsidiaries may sell property or assets in transactions not otherwise permitted by this Section 10.02 provided that (x) the Net Sale Proceeds received from all assets or property sold pursuant to this clause (p) shall not exceed $2,000,000 in any fiscal year of such sale, the Company and (ivy) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (iv) and containing the calculations (in reasonable detail) required by this clause (iv5.02(b);
(vq) RFS and RFS Sub may sell the RFS REIT Equity to the RFS REIT or to any other Person (other than to the Borrower or a Subsidiary thereof), in each case for cash and at fair market value (as determined in good faith by RFS or RFS Sub) so long as the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(vi) each of the Borrower and its Subsidiaries may sell all or a portion of their equity interests in the Existing Red Lion Joint Ventures, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arms'-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(f) and (v) (I) based on calculations made by the Borrower on a Pro Forma Basis after giving effect to the respective sale, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective sale pursuant to, the financial covenants contained in Sections 9.08 through 9.11, inclusive (provided that for purposes of determining pro forma compliance with any such Section for any period -75- 83 during which the covenants contained therein are not yet required to be tested pursuant to the terms thereof, the Borrower shall instead use the historical financial results of the Borrower and its Subsidiaries for the most recently ended four fiscal quarter period (but calculated as if the Transaction, the related financing thereof and the other transactions contemplated hereby had been consummated on the first day of such period and (x) assuming that the amount of Capital Expenditures, Hotel Investments and/or Hotel Acquisitions made during any portion of such period prior to the Initial Borrowing Date is at an assumed per annum rate of $40,000,000 and (y) with Consolidated EBITDA for such period to be determined in accordance with the definition thereof) and the Borrower shall be required to demonstrate, on a Pro Forma Basis, that no Default or Event of Default will exist under, or would have existed during such period prior to the date of the respective sale pursuant to, the financial covenants contained in any of such Sections 9.08 through 9.11, inclusive (but assuming, for this purpose, that the level of financial performance required to be satisfied is the level applicable to any such Section the first time compliance with such Section is required to be tested pursuant to the terms thereof)), and (II) the Borrower shall have delivered to the Agents an officer's certificate executed by the Chief Financial Officer of the Borrower or another senior financial officer of the Borrower, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vi) and containing the calculations (in reasonable detail) required by this clause (vi);
(vii) each of the Borrower and its Subsidiaries may sell Hotel Properties acquired by them after the Initial Borrowing Date pursuant to a Hotel Acquisition (except to the extent that such Hotel Property constitutes a newly acquired Designated Hotel Property), and each of the Borrower and its Subsidiaries may sell all or any portion of their equity interest in a Joint Venture acquired by them after the Initial Borrowing Date pursuant to a Hotel Investment, in either case, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm'snon-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale and (iv) in the case of a sale of an equity interest in a Joint Venture, the cash proceeds therefrom are applied as (and to the extent) required by Section 4.02(i);
(viii) each of the Borrower and its Subsidiaries may sell Hotel Properties as part of a Temporary Hotel Acquisition Transaction;
(ix) Investments may be made to the extent permitted by Section 9.05; -76- 84
(x) each of the Borrower and its Subsidiaries may lease (as lessee) real or personal property (so long as any such lease does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv));
(xi) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business;
(xii) the Transaction shall be permitted;
(xiii) Hotel Acquisitions shall be permitted to the extent provided in Section 9.07;
(xiv) each of the Borrower and its Subsidiaries may enter into sale-lease-back transactions with respect to owned Hotel Properties (including the Designated Hotel Properties), so long as each such transaction (w) is for at least 75% in cash and is paid at the time of the closing of such transaction, (x) is at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) all of the Net Sale Proceeds therefrom are applied as required by Section 4.02(f) and (z) no Default or Event of Default then exists or would result therefrom;
(xv) the Borrower may transfer any assets to a Subsidiary Guarantor, and any operating Subsidiary of the Borrower Company with no material assets and no material liabilities may merge wind up, liquidate or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as dissolve; and
(ir) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and cash in an aggregate amount for all such transactions not to exceed the amount permitted to be spent on Hotel Investments at such time pursuant to Section 9.07 (and with the amount of cash paid pursuant to this Section 9.02(xv) to constitute a Hotel Investment pursuant to Section 9.07) and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to the clause (xv) had not occurred);
(xvi) each of the Borrower Company and its Subsidiaries may grant leases or sub-leases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(xvii) each of the Borrower and its Subsidiaries may sell Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as each such sale is for cash and at fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be); and
(xviii) each of the Borrower and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one another so long as any such license by the Borrower or any other Credit Party in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that the security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any other Credit Party pursuant to the Security Agreement in the intellectual property covered by such licensePermitted Liens. To the extent the Required Banks Lenders waive the provisions of this Section 9.02 10.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 10.02 (other than to the Borrower Company or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect and/or evidence the foregoing. Notwithstanding anything to the contrary contained above in this Section 10.02 or elsewhere in this Agreement, at any time when an Event of Default has occurred and is continuing, no Eligible Accounts or Eligible Inventory may be sold, transferred or otherwise disposed of by any Credit Party (other than sales and the use of cash in the ordinary course of business and transactions permitted by Sections 10.02(g) and (o)).
Appears in 1 contract
Samples: Abl Credit Agreement (Ciena Corp)
