Common use of Fundamental Changes; Disposition of Assets; Permitted Acquisitions Clause in Contracts

Fundamental Changes; Disposition of Assets; Permitted Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, created, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and capital expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except: (1) any Subsidiary of Holdings (other than Borrower) may be merged with and into Borrower or any Guarantor Subsidiary or into any Person that, upon such merger, shall become a Credit Party, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any Guarantor Subsidiary or to any Person that, in connection with such transaction, becomes a Credit Party; provided, in the case of such a merger, (i) in no event shall the jurisdiction of organization of either the entity being merged into another entity or such surviving entity be changed (provided, that the foregoing shall not preclude Non-US Entities from merging into US Entities so long as the surviving entity is a US Entity that is a Credit Party), (ii) in any merger involving the Borrower, in no event shall the Borrower not be the continuing or surviving Person, (iii) the Guaranties of the Obligations and the Collateral securing the Obligations shall not be adversely affected in any material respect and (iv) any Person that becomes a Credit Party in connection herewith shall comply with Section 5.10 hereof and (2) any non-Guarantor Subsidiary (other than Borrower) may be merged with or into any other non-Guarantor Subsidiary (other than Borrower), or be liquidated, wound up or dissolved, or all or part of its assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any other non-Guarantor Subsidiary; (b) sales or other dispositions of assets that do not constitute Asset Sales or that are expressly carved-out from the definition of “Asset Sale;” (c) Asset Sales, the proceeds of which are less than (i) $500,000,000 from the Closing Date until the Acquisition Date and (ii) (without duplication of Section 6.8(c)(i)) $750,000,000 from the Closing Date until the date of determination; provided with respect to each of the Asset Sales in this clause (c): (1) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Holdings (or similar governing body)), (2) no less than 75% thereof shall be paid in Cash and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.11(a); (d) the liquidation, winding-up or dissolution of the Excluded Entities; (e) disposals of obsolete, worn out or surplus property; (i) any license of Intellectual Property in the ordinary course of business or (ii) the abandonment or other disposition of Intellectual Property in the ordinary course of business that is no longer material to the conduct of the business of Holdings and its Subsidiaries as such business is operated; (g) the discount, write-off or sale of overdue accounts receivables, in each case in the ordinary course of business; (h) Permitted Acquisitions; provided that (i) in respect of Permitted Acquisitions made by Credit Parties, the consideration for acquisition targets that do not become Guarantors shall not exceed more than (x) prior to the Acquisition Date, $75,000,000 in the aggregate from the Closing Date to the date of determination and (y) on and after the Acquisition Date, $125,000,000 in the aggregate from the Closing Date to the date of determination and (ii) the amounts set forth in the foregoing Section 6.8(h)(i) may be increased by (x) $50,000,000 less the amount of Investments outstanding pursuant to Section 6.6(e) and (y) so long as both before and immediately after giving effect to such Permitted Acquisition in acquisition targets that do not become Guarantors no Event of Default has occurred and is continuing or would result therefrom and the Leverage Ratio for the most recently ended Fiscal Quarter or Fiscal Year for which financial statements are then available does not exceed 2.50:1.00, the Available Amount; (i) Investments made in accordance with Section 6.6 (excluding Section 6.6(h)); (j) Asset Sales described in Schedule 6.8; (k) the subordination of the Liens on the Revolving Loan Priority Collateral securing the Revolving Credit Agreement to the extent required by the Closing Date Intercreditor Agreement and the subordination of the Liens on any ABL Collateral securing any Alternative Facilities to the extent required by the Closing Date Intercreditor Agreement or any Alternative Facility Intercreditor Agreement; (l) prior to the Acquisition, the sale by Tronox Australia to Yalgoo of Tronox Australia’s participating interest in the Tiwest Joint Venture; and (m) the Acquisition, so long as: (i) the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of the Acquisition Date (other than Section 4.9); provided that such materiality qualifier shall not be applicable to any representations and warranties that are already qualified or modified by materiality in the text thereof; provided further that, solely with respect to the Acquired Business and any South African Subsidiaries, the only representations relating to the Acquired Business and such Subsidiaries the accuracy of which will be a condition precedent to the Acquisition as of the Acquisition Date will be (A) the representations made by or with respect to the Acquired Business or such Subsidiaries in the Transaction Agreement as are material to the interests of the Lenders and the Administrative Agent, as reasonably determined by the Administrative Agent (but only to the extent that US Holdings or its Affiliates have the right not to consummate the Acquisition, or to terminate their obligations (or otherwise do not have an obligation to close) under the Transaction Agreement as a result of a failure of such representations in the Transaction Agreement to be true and correct) (the “Specified Transaction Agreement Representations”) and (B) the Specified Representations (as defined below). For purposes hereof, “Specified Representations” means the representations and warranties set forth in Sections 4.1, 4.3, 4.4(a), 4.4(b) (but only to the extent such Contractual Obligations are material to the Acquired Business or South African Subsidiaries), 4.4(c), 4.6, 4.16 (solely with respect to the Investment Company Act of 1940), 4.17 (other than with respect to the Exchange Act), 4.21, 4.24, 4.25, and 4.28 (other than to the extent relating to Collateral in which a Lien in favor of the Collateral Agent may be perfected after the Acquisition Date pursuant to the terms of Section 5.10);

Fundamental Changes; Disposition of Assets; Permitted Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, created, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and capital expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except: (1) any Subsidiary of Holdings (other than Borrower) may be merged with and into Borrower or any Guarantor Subsidiary or into any Person that, upon such merger, shall become a Credit Party, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any Guarantor Subsidiary or to any Person that, in connection with such transaction, becomes a Credit Party; provided, in the case of such a merger, (i) in no event shall the jurisdiction of organization of either the entity being merged into another entity or such surviving entity be changed (provided, that the foregoing shall not preclude Non-US Entities from merging into US Entities so long as the surviving entity is a US Entity that is a Credit Party), (ii) in any merger involving the Borrower, in no event shall the Borrower not be the continuing or surviving Person, (iii) the Guaranties of the Obligations and the Collateral securing the Obligations shall not be adversely affected in any material respect and (iv) any Person that becomes a Credit Party in connection herewith shall comply with Section 5.10 hereof and (2) any non-Guarantor Subsidiary (other than Borrower) may be merged with or into any other non-Guarantor Subsidiary (other than Borrower), or be liquidated, wound up or dissolved, or all or part of its assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any other non-Guarantor Subsidiary; (b) sales or other dispositions of assets that do not constitute Asset Sales or that are expressly carved-out from the definition of “Asset Sale;” (c) Asset Sales, the proceeds of which are less than (i) $500,000,000 from the Closing Date until the Acquisition Date and (ii) (without duplication of Section 6.8(c)(i)) $750,000,000 from the Closing Second Amendment Effective Date until the date of determination; provided that, with respect to each of the Asset Sales in this clause (c): ), (1) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Holdings (or similar governing body)), (2) no less than 75% thereof shall be paid in Cash and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.11(a); (d) the liquidation, winding-up or dissolution of the Excluded Entities; (e) disposals of obsolete, worn out or surplus property; (i) any license of Intellectual Property in the ordinary course of business or (ii) the abandonment or other disposition of Intellectual Property in the ordinary course of business that is no longer material to the conduct of the business of Holdings and its Subsidiaries as such business is operated; (g) the discount, write-off or sale of overdue accounts receivables, in each case in the ordinary course of business; (h) Permitted Acquisitions; provided that (i) the acquisition target becomes a Guarantor or, if such Permitted Acquisition is an asset purchase, such assets are purchased by a Credit Party and in respect each case the acquired assets are subject to a First Priority Lien in favor of Permitted Acquisitions made by Credit Partiesthe Collateral Agent and shall comply with Section 5.10 or (ii) to the extent that, and only so long as, any acquisition target is not legally permitted under applicable law to become a Guarantor and cause its assets to be subject to a First Priority Lien in favor of the Collateral Agent and comply with Section 5.10, the consideration for such acquisition targets that do not become Guarantors shall not exceed more than (x) prior to the Acquisition Date, $75,000,000 in the aggregate from the Closing Second Amendment Effective Date to the date of determination and (y) on and after the Acquisition Date, $125,000,000 in the aggregate from the Closing Date to the date of determination and (ii) the amounts set forth in the foregoing Section 6.8(h)(i) may be increased by more than (x) $50,000,000 less 300,000,000 plus (y) the difference between $150,000,000 and the amount of Investments outstanding pursuant to Section 6.6(e6.6(n) and plus (yz) so long as both before and immediately after giving effect to such Permitted Acquisition in acquisition targets that do not become Guarantors no Event of Default has occurred and is continuing or would result therefrom and the Leverage Ratio for the most recently ended Fiscal Quarter or Fiscal Year for which financial statements are then available does not exceed 2.50:1.003.00:1.00, the Available Amount; (i) Investments made in accordance with Section 6.6 (excluding Section 6.6(h)); (ji) Asset Sales described in Schedule 6.8;6.8 and (ii) the sale of assets acquired in a Permitted Acquisition and required to be sold or otherwise subject to a sale agreement within 24 months of the date of acquisition of such assets; and (k) the subordination of the Liens on the Revolving Loan Priority Collateral securing the Revolving Credit Agreement to the extent required by the Closing Date Intercreditor Agreement and the subordination of the Liens on any ABL Collateral securing any Alternative Facilities to the extent required by the Closing Date Intercreditor Agreement or any Alternative Facility Intercreditor Agreement; (l) prior to the Acquisition, the sale by Tronox Australia to Yalgoo of Tronox Australia’s participating interest in the Tiwest Joint Venture; and (m) the Acquisition, so long as: (i) the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of the Acquisition Date (other than Section 4.9); provided that such materiality qualifier shall not be applicable to any representations and warranties that are already qualified or modified by materiality in the text thereof; provided further that, solely with respect to the Acquired Business and any South African Subsidiaries, the only representations relating to the Acquired Business and such Subsidiaries the accuracy of which will be a condition precedent to the Acquisition as of the Acquisition Date will be (A) the representations made by or with respect to the Acquired Business or such Subsidiaries in the Transaction Agreement as are material to the interests of the Lenders and the Administrative Agent, as reasonably determined by the Administrative Agent (but only to the extent that US Holdings or its Affiliates have the right not to consummate the Acquisition, or to terminate their obligations (or otherwise do not have an obligation to close) under the Transaction Agreement as a result of a failure of such representations in the Transaction Agreement to be true and correct) (the “Specified Transaction Agreement Representations”) and (B) the Specified Representations (as defined below). For purposes hereof, “Specified Representations” means the representations and warranties set forth in Sections 4.1, 4.3, 4.4(a), 4.4(b) (but only to the extent such Contractual Obligations are material to the Acquired Business or South African Subsidiaries), 4.4(c), 4.6, 4.16 (solely with respect to the Investment Company Act of 1940), 4.17 (other than with respect to the Exchange Act), 4.21, 4.24, 4.25, and 4.28 (other than to the extent relating to Collateral in which a Lien in favor of the Collateral Agent may be perfected after the Acquisition Date pursuant to the terms of Section 5.10);.

Fundamental Changes; Disposition of Assets; Permitted Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or licensesub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, created, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and capital expenditures Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except: (1a) any Subsidiary of Holdings any Credit Party (other than BorrowerGathering) may be merged with and into Borrower or any Guarantor Subsidiary or into any Person that, upon such merger, shall become a other Credit Party, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any Guarantor Subsidiary or to any Person that, in connection with such transaction, becomes a other Credit Party; provided, in the case of such a merger, (i) in no event shall the jurisdiction of organization of either the entity being merged into another entity or such surviving entity be changed (provided, that the foregoing shall not preclude Non-US Entities from merging into US Entities so long as the surviving entity is a US Entity that is a Credit Party), (ii) in any merger involving the Borrower, in no event Party shall the Borrower not be the continuing or surviving Person, (iii) the Guaranties of the Obligations and the Collateral securing the Obligations shall not be adversely affected in any material respect and (iv) any Person that becomes a Credit Party in connection herewith shall comply with Section 5.10 hereof and (2) any non-Guarantor Subsidiary (other than Borrower) may be merged with or into any other non-Guarantor Subsidiary (other than Borrower), or be liquidated, wound up or dissolved, or all or part of its assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any other non-Guarantor Subsidiary; (b) Prior to the IPO, Holdings shall be permitted to dissolve; provided that the general partner interests owned by Holdings are distributed to the general partner of Pipeline and the limited partner interests owned by Holdings are distributed to Pipeline or its Subsidiaries; (c) sales or other dispositions of assets that do not constitute Asset Sales or that are expressly carved-out from the definition of “Asset SaleSales;” (cd) Asset SalesSales of property other than any gas processing plant facilities, the proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other non-Cash proceeds) (i) are less than (i) $500,000,000 from the Closing Date until the Acquisition Date 7,500,000 with respect to any single Asset Sale or series of related Asset Sales and (ii) (without duplication when aggregated with the proceeds of Section 6.8(c)(i)) all other Asset Sales made within the same Fiscal Year, are less than $750,000,000 from the Closing Date until the date of determination25,000,000; provided with respect to each of the Asset Sales in this clause (c): (1) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Holdings the then applicable Reporting Person (or similar governing body)) of the then applicable Reporting Person), (2) no less than 7580% thereof shall be paid in Cash Cash, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.11(a2.14(a); (d) the liquidation, winding-up or dissolution of the Excluded Entities; (e) disposals of obsolete, worn out or surplus property; (if) any license an exchange or “swap” of Intellectual Property in the ordinary course of business or (ii) the abandonment pipeline or other disposition fixed, tangible assets of Intellectual Property in any Credit Party for the ordinary course assets of business that is no longer material to the conduct of the business of Holdings and its Subsidiaries as such business is operated; (g) the discount, write-off or sale of overdue accounts receivables, in each case a Person other than another Credit Party in the ordinary course of business; provided that such Credit Party received reasonable equivalent value for such assets, such value to be demonstrated to the reasonable satisfaction of Administrative Agent; and provided, further, that the fair market value of all such assets of the Credit Parties exchanged or “swapped”, other than exchanges or swaps of the assets described in Schedule 6.9(e), does not exceed $25,000,000 for the term of this Agreement; (hg) Permitted Acquisitions; provided that (i) in respect of Permitted Acquisitions made by Credit Parties, the consideration for acquisition targets that do not become Guarantors shall not exceed more which constitutes less than (x) prior to the Acquisition Date, $75,000,000 100,000,000 in the aggregate from the Restatement Closing Date to the date of determination determination; provided that, upon and following the IPO, such $100,000,000 limitation shall cease to apply and be of no force or effect, and Permitted Acquisitions shall be unrestricted; (yh) on and after the Acquisition Date, $125,000,000 transactions specified in the aggregate from Contribution Agreement, and other transactions, transfers, dispositions and acquisitions necessary to effect the Closing Date to the date of determination and (ii) the amounts set forth in the foregoing Section 6.8(h)(i) may be increased by (x) $50,000,000 less the amount of Investments outstanding pursuant to Section 6.6(e) and (y) so long as both before and immediately after giving effect to such Permitted Acquisition in acquisition targets that do not become Guarantors no Event of Default has occurred and is continuing or would result therefrom and the Leverage Ratio for the most recently ended Fiscal Quarter or Fiscal Year for which financial statements are then available does not exceed 2.50:1.00, the Available Amount;IPO; and (i) Investments made in accordance with Section 6.6 (excluding Section 6.6(h)); (j) Asset Sales described in Schedule 6.8; (k) the subordination of the Liens on the Revolving Loan Priority Collateral securing the Revolving Credit Agreement to the extent required by the Closing Date Intercreditor Agreement and the subordination of the Liens on any ABL Collateral securing any Alternative Facilities to the extent required by the Closing Date Intercreditor Agreement or any Alternative Facility Intercreditor Agreement; (l) prior to the Acquisition, the sale by Tronox Australia to Yalgoo of Tronox Australia’s participating interest in the Tiwest Joint Venture; and (m) the Acquisition, so long as: (i) the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of the Acquisition Date (other than Section 4.9); provided that such materiality qualifier shall not be applicable to any representations and warranties that are already qualified or modified by materiality in the text thereof; provided further that, solely with respect to the Acquired Business and any South African Subsidiaries, the only representations relating to the Acquired Business and such Subsidiaries the accuracy of which will be a condition precedent to the Acquisition as of the Acquisition Date will be (A) the representations made by or with respect to the Acquired Business or such Subsidiaries in the Transaction Agreement as are material to the interests of the Lenders and the Administrative Agent, as reasonably determined by the Administrative Agent (but only to the extent that US Holdings or its Affiliates have the right not to consummate the Acquisition, or to terminate their obligations (or otherwise do not have an obligation to close) under the Transaction Agreement as a result of a failure of such representations in the Transaction Agreement to be true and correct) (the “Specified Transaction Agreement Representations”) and (B) the Specified Representations (as defined below). For purposes hereof, “Specified Representations” means the representations and warranties set forth in Sections 4.1, 4.3, 4.4(a), 4.4(b) (but only to the extent such Contractual Obligations are material to the Acquired Business or South African Subsidiaries), 4.4(c), 4.6, 4.16 (solely with respect to the Investment Company Act of 1940), 4.17 (other than with respect to the Exchange Act), 4.21, 4.24, 4.25, and 4.28 (other than to the extent relating to Collateral in which a Lien in favor of the Collateral Agent may be perfected after the Acquisition Date pursuant to the terms of Section 5.10);6.7.