Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assets, except: (a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a); provided that (A) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1) the Borrower shall be the continuing or surviving Person or (2) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06; (b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division); (i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Division, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any; (d) (x) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) and (y) the leasing or subleasing of real property in the ordinary course of business; (e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain; (f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made; (g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix)); (h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii); (i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property; (j) Dispositions of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof; (l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line; (i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business; (n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding); (o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed; (p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower); (q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder; (r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped; (s) [reserved]; (i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use; (u) terminations or unwinds of Derivative Transactions; (v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries; (w) [reserved]; (x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law; (y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction; (z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter; (aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years; (bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and (cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.
Appears in 6 contracts
Samples: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.), Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.), Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value (as reasonably determined in good faith by the Borrower) in excess of $10,000,000 in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary Subsidiary, and the Borrower may be merged, consolidated or amalgamated with or into any other Person (ii) including any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(aSubsidiary); provided that (A) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1i) the Borrower shall be the continuing or surviving Person or (2ii) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (xw) the Successor Borrower shall be an entity organized or existing under the law laws of the U.S.US, any state thereof or the District of Columbia, (yx) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent, (y) the Administrative Agent shall have a security interest in the Collateral for the benefit of the Secured Parties pursuant to the Collateral Documents that is perfected to at least the same extent as in effect immediately prior to such merger, consolidation or amalgamation and all actions reasonably requested by the Administrative Agent to maintain such perfected status have been or will promptly be taken (subject to the terms of the applicable Loan Documents), and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (xw) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital StockStock issued by any Restricted Subsidiary) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the BorrowerBorrower or such Restricted Subsidiary, is not materially disadvantageous to the Lenders Lenders, and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause Section 6.07(a) or (b) or this clause (cSection 6.07(c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entityentity (and solely with respect to the Borrower, organized in the US, any state thereof or the District of Columbia), so long as such conversion does not adversely affect the value of the Guarantees under the Loan Guaranty or the Collateral, if anytaken as a whole;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of including on an intercompany basis among the Borrower and its Restricted Subsidiaries) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (Ai) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (Bii) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and Liens, (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) or (z) Sale and Lease-Back Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 15,000,000 and 0.3510.0% of Consolidated Total Assets as Adjusted EBITDA of the last day of Borrower for the most recently ended Test Period calculated on a Pro Forma BasisPeriod, either (A) at least 75% of the consideration for such Disposition all Dispositions consummated pursuant to this Section 6.07(h) since the Closing Date shall consist of Cash or Cash Equivalents or (B) at least 50% of the consideration for all Dispositions consummated pursuant to this Section 6.07(h) since the Closing Date shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% or 50% Cash consideration requirement, as applicable, (w) the greater of the principal amount and carrying value of any Indebtedness or other liabilities (other than Indebtedness as reflected on the most recent balance sheet of the Borrower (or other a Parent Company) provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that are subordinated would have been reflected on the balance sheet of the Borrower (or Parent Company) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the Obligations or that are owed to date of such balance sheet, as determined in good faith by the Borrower or any Restricted SubsidiaryBorrower) of the Borrower or any such Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in Subsidiary, other than liabilities that are by their terms subordinated to the notes thereto)) Obligations, that are assumed by the transferee of any such assets and for (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases the Borrower and/or its applicable or such Restricted Subsidiary have been validly released by all relevant creditors in writingfrom such liabilities, (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 Restricted Subsidiary from such the 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 in respect of such Disposition having an aggregate fair market valuevalue (as reasonably determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) and Section 6.08(b) that is at that time outstanding, not in excess of the greater of $105,000,000 30,000,000 and 0.7520.0% of Consolidated Total Assets as Adjusted EBITDA of the last day of Borrower for the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (yi) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii) and (ii) for purposes of calculating the amount of prepayments required under Section 2.11(b)(ii) with the Net Proceeds of Dispositions consummated pursuant to clause (B) of this Section 6.07(h), the Borrower shall not be entitled to deduct from the calculation of such Net Proceeds any amounts reinvested in the business of the Borrower or any of its subsidiaries);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or (i) accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereofthereof and sales to factors or similar third parties) or in connection with the collection or compromise thereofthereof and (ii) receivables and related assets pursuant to any Permitted Receivables Financing;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product or business line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closedclosed (or otherwise in connection with the closing or sale of any facility);
(p) Dispositions to the extent otherwise restricted by this Section 6.07, the consummation of Real Estate Investments in the ordinary course of business Transactions (as determined in good faith by including the BorrowerTarget Merger);
(q) Disposition Dispositions of any non-core assets (i) and sales of Real Estate Assets acquired in a any acquisition or other investment permitted hereunder, hereunder which assets are (x) the Borrower determines in good faith will not be used or useful in for the ordinary course or the principal business continued operation of the Borrower and or any of its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations any of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereundertheir respective businesses;
(r) exchanges or swaps, including including, without limitation, transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded AssetAssets, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved]Dispositions of assets that do not constitute Collateral for fair market value;
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or other IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances issuance or registrationsregistration, or applications for issuances issuance or registrationsregistration, of IP Rights, which, in the reasonable business judgment good faith determination of the Borrower, are not material to the conduct of the business of the Borrower or and its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business of the Borrower and/or its subsidiaries in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of LawLaw (including, without limitation, the Dispositions of any assets (including Capital Stock) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition);
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. US, any state thereof or the District of Columbia and/or (ii) any Foreign Subsidiary in the U.S. US or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) other Dispositions involving assets having a fair market value (as reasonably determined in good faith by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 23,000,000 and 0.3615.0% of Consolidated Total Assets as Adjusted EBITDA of the last day of Borrower for the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;Period; and
(bb) so long as Dispositions contemplated on the Borrower would be in compliance with Section 6.13(a) Closing Date and described on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingSchedule 6.07 hereto. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate reasonably requested by the Borrower (including, without limitation, any full or partial release or subordination of any Lien granted pursuant to the terms of this Agreement) in order to effect the foregoing in accordance with Article 8 VIII hereof. Notwithstanding anything to the contrary contained in this Agreement, the Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, make any Disposition of, or any Investment in the form of, any assets (including intellectual property or IP Rights) to any Unrestricted Subsidiary, unless such Disposition or Investment is on an arm’s length basis and for fair market value, as determined in good faith by the Board of Directors or a Responsible Officer of the Borrower.
Appears in 5 contracts
Samples: First Lien Credit Agreement (Waystar Holding Corp.), First Lien Credit Agreement (Waystar Holding Corp.), Fourth Amendment to the First Lien Credit Agreement (Waystar Holding Corp.)
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assets, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a); provided that (A) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1) the Borrower shall be the continuing or surviving Person or (2) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Division, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) Subsidiaries and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 24,000,000 and 0.350.55% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 48,000,000 and 0.751.10% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a an acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved]any sale, syndication or other transfer of CRE Finance Assets (including, without limitation, in connection with any Asset Financing Facility);
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]any sale or other transfer of Excluded Real Property in the ordinary course of business (as determined in good faith by the Borrower);
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 9,000,000 and 0.360.20% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral (including, without limitation, any Capital Stock included in the Collateral) is Disposed disposed of as expressly permitted in a transaction not prohibited by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold transferred free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Dispositiondisposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.
Appears in 5 contracts
Samples: Term Loan Credit Agreement (Claros Mortgage Trust, Inc.), Term Loan Credit Agreement (Claros Mortgage Trust, Inc.), Term Loan Credit Agreement (Claros Mortgage Trust, Inc.)
Fundamental Changes; Disposition of Assets. The Borrower shall notNone of the Loan Parties shall, nor shall it they permit any of its Restricted their Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves itself (or suffer any liquidation or dissolution), or otherwise make any Disposition Disposition, in a single transaction or a series of any assetsrelated transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower a Loan Party or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such a merger, consolidation or amalgamation with or into the Borrowera Borrower or any Closing Date Guarantor, (1) the such Borrower or such Closing Date Guarantor, as applicable, shall be the continuing or surviving Person or (2) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisiona merger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor (other than a Closing Date Guarantor), either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the guarantee obligations of the Borrower or such Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant such transaction shall be treated as an Investment and shall comply with Section 6.066.03 (other than in reliance on clause (j) thereof); provided, further, than no U.S. Loan Party may be merged, consolidated or amalgamated with or into a Subsidiary that is not a U.S. Loan Party;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary members of the Combined Group (upon voluntary liquidation or otherwise); provided that any such Disposition by a Loan Party to a Person that is not a Loan Party or by a Specified Loan Party to a Person that is not a Specified Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) so long as any consideration received in the form of a Divisionintercompany Indebtedness shall meet the requirements set forth in clause (ii) below or (ii) treated as an Investment and otherwise made in compliance with Section 6.03 (other than in reliance on clause (j) thereof);
(ic) the liquidation or dissolution of any Restricted Subsidiary if the Borrower Representative determines in good faith that such liquidation or dissolution is in the best interests of the BorrowerLoan Parties, is not materially disadvantageous to the Lenders and the Borrower either a Loan Party or any Restricted a Subsidiary receives any assets of the relevant such dissolved or liquidated Restricted Subsidiary; provided that in the case of any a dissolution or liquidation or dissolution of any a Loan Party that results in a distribution of assets to any Restricted Subsidiary a subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 6.03 (other than in reliance on clause (j) thereof); (ii) provided, further, in the case of a change in the form of an entity of any merger or Division, amalgamation, dissolution, liquidation or consolidationSubsidiary that is a Loan Party, the purpose of which is security interests in the Collateral shall remain in full force and effect and perfected to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long same extent as prior to such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if anychange;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the BorrowerBorrower Representative, is (A) no longer useful in its the business of any of the Loan Parties (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintaintheir Subsidiaries);
(f) Dispositions sales of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when for the relevant original Investment was madefair market value thereof in the ordinary course of business;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to under Section 6.06 6.03 (other than Section 6.06(jpursuant to clause (j) or (n)), (x) Permitted Liens and (y) Liens, Restricted Payments permitted by under Section 6.04(a) (other than pursuant to clause (i)) and Sale and Lease-Back Transactions permitted under Section 6.04(a)(ix))6.09;
(h) Dispositions of any assets of any Loan Party or any Subsidiary for fair market value; provided that (A) with respect to any such Disposition, as determined on the date on which the agreement governing such Disposition involving assets with a purchase price is executed, the aggregate fair market value of all property Disposed of in excess reliance on this clause (h) (including such Disposition) shall not exceed the lesser of (x) 10% of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basisfor which financial statements have been delivered pursuant to Section 5.01, and (y) $75,000,000, and (B) at least 75% of the consideration for each such Disposition made in reliance on this clause (h) shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, requirement (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 any Loan Party or any Restricted Subsidiary) of the Borrower any Loan Party or any Restricted Subsidiary (as shown on such Personperson’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets and for which the Borrower and/or its applicable Restricted Subsidiary Loan Parties and their Subsidiaries shall 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 any Loan Party 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, 5,000,000 in each case, shall be deemed to be Cash); provided, further, that (xi) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists shall exist and (yii) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii2.10(b)(ii);
(i) to the extent that (i) the relevant property is or assets are exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures or any Subsidiary that is not a Wholly-Owned Subsidiary to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions Dispositions, discounting or forgiveness of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any an open source license), in each case in the ordinary course of business, which (i) the Disposition or termination of which will do not materially interfere with the business of the Borrower Loan Parties and its Restricted their Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product linefacilities;
(m) (i) any termination of any lease leases in the ordinary course of business, (ii) any the expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closedthe Transactions may be consummated;
(p) Dispositions of non-core assets acquired in connection with an acquisition permitted hereunder and sales of Real Estate Investments Assets acquired in an acquisition permitted hereunder which, within 30 days of the ordinary course date of business the acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of the Loan Parties’ businesses (or that of any Subsidiary); provided that (i) the Net Proceeds received in connection with any such Dispositions shall be applied and/or reinvested as determined in good faith (and to the extent required) by the Borrower)Section 2.10(b)(ii) and (ii) no Event of Default shall have occurred and be continuing or would result therefrom;
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), ) of assets Real Estate Assets so long as any such the exchange or swap is made for fair value (as reasonably determined by the Borrower) and on an arms’ length basis for like assetsother Real Estate Assets; provided that, that (i) upon the consummation of any such exchange or swap by swap, in the case of any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with having the same priority as the any Lien held on the Real Estate Assets so exchanged or swappedswapped and (ii) any Net Proceeds received as “cash boot” in connection with any such transaction shall be applied and/or reinvested as (and to the extent required) by Section 2.10(b)(ii);
(sr) [reserved]other Dispositions for fair market value in an aggregate amount since the Closing Date of not more than $7,500,000;
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrower Loan Parties or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositionsthe abandonment, abandonments, cancellations cancellation or lapses lapse of IP Rights, or any issuances or registrations, or applications for issuances or registrations, of any IP Rights, which, in the reasonable business judgment good faith determination of the Borrowerapplicable Loan Party, are not material to necessary for the conduct of the business of the Borrower or such Loan Party and its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(ut) terminations or unwinds of Derivative Transactions;; and
(vu) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 6.06 to any Person other than a Loan PartyParty or, if an Event of Default is continuing or would result therefrom, any other Subsidiary, such Collateral shall automatically be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereofforegoing.
Appears in 4 contracts
Samples: Credit Agreement (Osmotica Pharmaceuticals PLC), Credit Agreement (Osmotica Pharmaceuticals PLC), Credit Agreement (Osmotica Pharmaceuticals LTD)
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition having a fair market value in excess of any assets$20,000,000, in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Surviving Person shall expressly assume the guarantee obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary may be converted into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Liens, Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and Sale and Lease-back Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 25,000,000 and 0.351.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, as applicable, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) and Section 6.08 that is at that time outstanding, not in excess of the greater of $105,000,000 50,000,000 and 0.751.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists shall exist and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereofthereof and any factoring or similar arrangement) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), which (i) the Disposition or termination of which will do not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in connection with the ordinary course of business (as determined in good faith by the Borrower)Transactions;
(q) Disposition Dispositions of any non-core assets (i) acquired in a connection with any acquisition or other investment permitted hereunderhereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, which assets within 90 days of the date of such acquisition, are (x) designated in writing to the Administrative Agent as being held for sale and not used or useful in for the ordinary course or the principal business continued operation of the Borrower and or any of its Restricted Subsidiaries or any of their respective businesses; provided that (yi) non-core assets or unnecessary the Net Proceeds received in connection with any such Disposition shall be applied and/or reinvested as (and to the business or operations of the Borrower extent required) by Section 2.11(b)(ii) and its Restricted Subsidiaries or (ii) made in connection with no Event of Default exists on the approval of any applicable antitrust authority or otherwise necessary or advisable in date on which the good faith determination of definitive agreement governing the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like property or assets; provided that, that (i) upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets property received do does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swappedswapped and (ii) any Net Proceeds received as “cash boot” in connection with any such transaction shall be applied and/or reinvested as (and to the extent required) by Section 2.11(b)(ii);
(s) [reservedReserved];
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority agency of the U.S. Federal government, any state, authority or other regulatory body or any applicable Requirement Requirements of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdictionU.S.;
(z) Dispositions or conveyances that arise out of or relate to any (i) Specified Lease Transaction or (ii) NMTC Transaction;
(aa) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;; and
(aabb) other Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) in the aggregate since the Closing Date of not more than the greater of $50,000,000 40,000,000 and 0.361.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingPeriod. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof8.
Appears in 3 contracts
Samples: Term Loan Credit Agreement (PQ Group Holdings Inc.), Term Loan Credit Agreement (PQ Group Holdings Inc.), Term Loan Credit Agreement (PQ Group Holdings Inc.)
Fundamental Changes; Disposition of Assets. The Administrative Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value in excess of $30,000,000 in a single transaction or in a series of related transactions and in excess of $60,000,000 in the aggregate for all such transactions in any Fiscal Year, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Administrative Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the any Borrower, (1A) the such Borrower shall be the continuing or surviving Person (and, if with or into the Administrative Borrower, the Administrative Borrower shall be the continuing or surviving Person) or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the a Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law laws of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the such Borrower in a manner reasonably satisfactory to the Administrative Agent and the Administrative Agent shall have received all documentation and other information reasonably requested with respect to Successor Borrower, which documentation or other information is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and (z) except as the Administrative Agent may otherwise agree, each Loan Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the a Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or a Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Administrative Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Administrative Borrower determines in good faith that such liquidation or dissolution is in the best interests of the BorrowerBorrowers, is not materially disadvantageous to the Lenders Lenders, and the Administrative Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause Sections 6.07(a) or (b) or this clause (cSection 6.07(c)) or (B) any Investment permitted under Section 6.066.06 (other than in reliance on clause (j) thereof); and (iii) the conversion of the Administrative Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or the Collateral, if anytaken as a whole;
(d) (x) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.
Appears in 3 contracts
Samples: Credit Agreement (Syneos Health, Inc.), Credit Agreement (Syneos Health, Inc.), Credit Agreement (INC Research Holdings, Inc.)
Fundamental Changes; Disposition of Assets. The No Borrower shall notshall, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition Disposition, in a single transaction or in a series of any assetsrelated transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the any Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the a Borrower, (1) the such Borrower shall be the continuing or surviving Person or and (2ii) if in the Person formed by or surviving case of any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the guarantee obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the any Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as reasonably determined by such Person) with at least 75% of the consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof); provided, further, that any such Disposition by any Loan Party (whether as a result single transaction or any series of transactions) to any Non-Qualified Loan Party of any intellectual property that, individually or in the aggregate, is material to the business of the Borrowers and their Restricted Subsidiaries, taken as a Divisionwhole, shall be treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clauses (b)(ii) or (j) thereof);
(c) (i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower Representative determines in good faith that such liquidation or dissolution is in the best interests of the BorrowerBorrowers, is not materially disadvantageous to the Lenders and the any Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.066.06 (other than in reliance on clause (j) thereof); and (iii) the conversion of the Borrower or any Restricted Subsidiary (other than a Borrower) may be converted into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the BorrowerBorrower Representative, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the such Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Liens, Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and Sale and Lease-Back Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, 10,000,000 at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 any Borrower or any Restricted Subsidiary) of the any Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets and for which the any 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 assets acquired in connection with such Disposition, (y) any Securities received by the any 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 10,000,000 and 0.752.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists shall exist and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereofthereof and any factoring or similar arrangement) or in connection with the collection or compromise thereofthereof (other than in connection with a Permitted Securitization Financing);
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), which (i) the Disposition or termination of which will do not materially interfere with the business of the Borrower Borrowers and its their Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in connection with the ordinary course of business (as determined in good faith by the Borrower)Transactions;
(q) Disposition Dispositions of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary acquired in connection with any acquisition permitted hereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, within 90 days of the date of such acquisition, are designated in writing to the business or operations Administrative Agent as being held for sale and not for the continued operation of the Borrower and its Borrowers or any of their Restricted Subsidiaries or any of their respective businesses; provided that (i) the Net Proceeds received in connection with any such Disposition shall be applied and/or reinvested as (and to the extent required) by Section 2.11(b)(ii) and (ii) made in connection with no Event of Default exists on the approval of any applicable antitrust authority or otherwise necessary or advisable in date on which the good faith determination of definitive agreement governing the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange or swap is made for fair value (as reasonably determined by the BorrowerBorrower Representative) for like property or assets; provided that, that (i) upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets property received do does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swappedswapped and (ii) any Net Proceeds received as “cash boot” in connection with any such transaction shall be applied and/or reinvested as (and to the extent required) by Section 2.11(b)(ii);
(s) [reserved]the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings;
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the any Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the BorrowerBorrower Representative, are not material to the conduct of the business of the Borrower Borrowers or its their Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted SubsidiariesSubsidiaries so long as (i) no Default or Event of Default then exists or would result therefrom (ii) substantially all of the assets of such Unrestricted Subsidiary does not consist of Cash, Cash Equivalents and/or assets that were contributed and/or otherwise transferred to such Unrestricted Subsidiary by any Borrower or any Restricted Subsidiary in the form of one or more Investments and (iii) the fair market value of the Capital Stock in such Unrestricted Subsidiary does not exceed 10% of the Consolidated Adjusted EBITDA of the Borrowers and their Restricted Subsidiary as of the most recently ended Test Period;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, any Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority agency of the U.S. Federal government, any state, authority or other regulatory body or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdictionU.S.;
(z) Dispositions to effectuate the Transactions in accordance with the Steps Plan;
(aa) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith[Reserved]; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingDispositions contemplated on the Closing Date and described on Schedule 6.07. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof8.
Appears in 2 contracts
Samples: Credit Agreement (Indivior PLC), Credit Agreement (Indivior PLC)
Fundamental Changes; Disposition of Assets. The Borrower shall notNo Credit Party shall, nor shall it permit any of its Restricted Subsidiaries to, enter into (i) any transaction of merger, consolidation merger or amalgamation, consummate a Division as the Dividing Personconsolidation, or liquidate, wind wind-up or dissolve themselves itself (or suffer any liquidation or dissolution), or otherwise make (ii) any Disposition of any assetsAsset Sale, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation Asset Sales of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a); provided that (A) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1) the Borrower shall be the continuing or surviving Person or (2) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06inventory;
(b) Dispositions Asset Sales of Cash and Cash Equivalents;
(including c) Asset Sales of Capital Stockobsolete or worn out personal property and fixtures;
(d) among the Borrower and/or any Restricted Subsidiary Asset Sales in connection with (upon voluntary liquidation or otherwise) (including as a result of a Division)of) Investments made in accordance with Section 6.6;
(e) Asset Sales of the Special Consideration Properties and the other Specified Properties;
(f) Asset Sales for Fair Market Value, so long as (x) Borrowers shall be in compliance with the financial covenants set forth in Section 6.7 on a pro forma basis after giving effect to such Asset Sale as of the last day of the Fiscal Quarter most recently ended and (y) if such Asset Sale is with respect to Collateral, the ratio of (i) the liquidation or dissolution Value of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous all remaining Collateral to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) the aggregate Revolving Commitments of all Lenders shall be at least 4:00 to 1:00;
(g) amalgamations, mergers, liquidations, dissolutions and consolidations among Parent and/or its Subsidiaries or with any merger or Division, amalgamation, dissolution, liquidation or consolidation, Person the purpose of which is to effect (A) any Disposition an Investment otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, 6.6 so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j))a Borrower is the survivor of any such transaction involving a Borrower, (x) Permitted Liens and one or more Credit Parties is the survivor of any such transaction involving a Credit Party or the survivor shall expressly assume the Obligations of such Credit Party under the Credit Documents in a manner reasonably acceptable to Administrative Agent, (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to Parent is the survivor of any such Disposition transaction involving assets Parent or, if Parent is not the survivor, (A) the survivor shall expressly assume the Obligations of Parent under the Credit Documents in a manner reasonably acceptable to Administrative Agent, (B) no Default or Event of Default shall occur after giving effect to such transaction and (C) Credit Parties shall be in compliance with the financial covenants set forth in Section 6.7 on a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets pro forma basis after giving effect to such transaction as of the last day of the Fiscal Quarter most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in the notes thereto)) that are assumed by the transferee of any such assets and for which financial statements are available and shall provide a certificate to Administrative Agent demonstrating the Borrower and/or its applicable Restricted Subsidiary have been validly released by all relevant creditors in writingsame, (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 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) in the case of a transaction involving any Designated Nonnon-Cash Consideration received in respect Wholly Owned Subsidiary of such Disposition having an aggregate fair market valueBorrowers, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, either a Wholly Owned Subsidiary shall be deemed to be Cash); provided, further, that (x) on the date on which survivor of any such transaction or the agreement governing such Disposition is executed, no Event of Default transaction shall constitute an Investment permitted under Section 7.01(a), 6.6;
(fh) or (g) exists and (y) Asset Sales of Capital Stock by any REIT Subsidiary to individuals of preferred equity with a base liquidation preference of no more than $180,000 in the Net Proceeds of aggregate for any such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii)REIT Subsidiary;
(i) Asset Sales as a result of the exercise of (i) a buy/sell provision with respect to any non-Wholly Owned Subsidiary or Joint Venture and (ii) any options to purchase or lease, rights of first offer, rights of first refusal and executed agreements with respect to pending Asset Sales existing as of the Closing Date;
(j) spin-off of Spinco Inc., as contemplated in the Plan and other transactions specifically contemplated by the Investment Agreements or the Plan;
(k) Asset Sales of property as a result of (x) any condemnation proceeding (or credible threat thereof) or Asset Sale in lieu thereof or (y) a casualty;
(l) amalgamations, mergers, liquidations, dissolutions and consolidations the purpose of which is to effect any Asset Sale otherwise permitted under the Credit Documents;
(m) Asset Sales of personal property to the extent that (i) the relevant such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition such Asset Sales are promptly applied to the purchase price of such replacement property;
(jn) Dispositions Asset Sales or discounts of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions of notes accounts receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or notes in connection with the collection or compromise thereof;
(lo) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease Asset Sales in the ordinary course of businessbusiness consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination of the Credit Parties are not material to the conduct of the business of Parent or its Subsidiaries;
(iip) any the expiration of any option agreement in respect of real or personal property property;
(q) to the extent constituting an Asset Sale, the granting of any Lien permitted by Section 6.2, and the making of any Restricted Junior Payment permitted by Section 6.4;
(r) Asset Sales of Capital Stock in order to qualify members of the board of directors (or similar governing body) of any Credit Party or any of their Subsidiaries if required by applicable law or contract;
(s) (i) any involuntary terminations of Hedge Agreements not resulting in an Event of Default under Section 8.1(b), (ii) any voluntary terminations of Hedge Agreements that do not require payment of any termination fee by Parent or any of its Subsidiaries and (iii) any surrender voluntary terminations of Hedge Agreements that require payment of a termination fee so long as Parent is in pro forma compliance with the financial covenant set forth in Section 6.7(b) after giving effect thereto;
(t) Asset Sales to any Credit Party or waiver any Wholly Owned Subsidiary of contractual rights a Credit Party or, in the case of any non-Wholly Owned Subsidiary of a Credit Party, to a Credit Party, a Wholly Owned Subsidiary of a Credit Party or to the settlementowners of such non-Wholly Owned Subsidiary on a pro rata basis;
(u) any lease, release license, easement or surrender of contractual rights or litigation claims (including in tort) other occupancy agreement entered into in the ordinary course of business;; and
(nv) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (Asset Sales as determined in good faith by the Borrower);
(q) Disposition a result of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made transaction solely in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness mortgage or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order transfer of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be property for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Permitted Project Level Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (General Growth Properties, Inc.), Credit and Guaranty Agreement (New GGP, Inc.)
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation merger or amalgamation, consummate a Division as the Dividing Personconsolidation, or liquidate, wind up or dissolve themselves itself (or suffer any liquidation or dissolution), or otherwise make any Disposition having a fair market value in excess of any assetsthe greater of (i) $7,000,000 and (ii) 6.00% of Consolidated Adjusted EBITDA of the Borrower as of the last day of the most recently ended Test Period for which financial statements are available, in a single transaction or in a related series of transactions, except:
(a) (i) any Restricted Subsidiary the Borrower may be merged, consolidated or amalgamated with or into the Borrower any Person, or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person ifconvey, immediately upon the consummation sell, transfer or otherwise dispose of the Divisionall or substantially all of its business, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such timeproperty to another Person; provided, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a); provided that (v) (A) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1) the Borrower shall be the continuing or surviving Person or (2B) if with respect to the Person formed by or surviving any such merger, consolidation or amalgamation is not (if other than the Borrower) or to which such conveyance, sale, lease or sublease, transfer or other disposition will have been made (the Borrower (any or such surviving Person, the “Successor BorrowerPerson”), (w) such Successor Person shall expressly assume all of the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto and/or thereto in form reasonably satisfactory to the Administrative Agent, (x) the such Successor Borrower Person shall be an entity organized or existing under the law laws of the U.S., any state thereof or the District of Columbia, (y) no Default or Event of Default then exists or would result therefrom and (z) the Successor Borrower shall deliver a certificate of a Responsible Officer with respect to the satisfaction of the conditions under clauses (w), (x) and (y) of this proviso and (ii) any Subsidiary of the Borrower may be merged or consolidated or amalgamated with or into, or convey, sell, transfer or otherwise dispose of all or substantially all of its business, assets or property to, the Borrower, any other Subsidiary or any other Person; provided that (w) in the case of such a transaction involving the Borrower, the Borrower shall be the continuing or surviving Person, (x) [Reserved], (y) in the case of such a transaction involving any Subsidiary Guarantor, either (A) a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the Obligations all of the Borrower obligations of such Subsidiary Guarantor under this Agreement and the other Loan Documents to which such Subsidiary Guarantor is a part of pursuant to a supplement hereto or thereto in a manner form reasonably satisfactory to the Administrative Agent or (B) such transaction shall be treated as an Investment and shall comply with Section 6.06 and (z) except in the case of such a transaction involving a Subsidiary, either (A) a Subsidiary shall be the continuing or surviving Person or (B) such transaction shall be treated as the Administrative Agent may otherwise agreean Investment and shall comply with Section 6.06; provided, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed further that if the foregoing conditions under clauses set forth above in clause (x) through (zi) are satisfied, the Successor Borrower Person will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary and its Subsidiaries (upon voluntary liquidation or otherwise); provided that any such Disposition by a Loan Party to a Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) and at least 75% of a Divisionthe consideration for such Disposition consists of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation liquidation, dissolution or dissolution change in form (x) is in the best interests of the Borrower, Borrower and (y) is not materially disadvantageous to the Lenders and and, in the case of a liquidation or dissolution of any Subsidiary either the Borrower or any Restricted a Subsidiary receives any assets of the relevant such dissolved or liquidated Restricted Subsidiary; provided that in the case of any a dissolution or liquidation or dissolution of any a Loan Party that results in a distribution of assets to any Restricted a Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (jSection 6.06(j)) thereof); and (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any a Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any an Investment permitted under Section 6.066.06 (other than Section 6.06(j)); and (iii) provided, further, in the conversion case of a change in the Borrower or any Restricted Subsidiary into another form of entityentity of any Subsidiary that is a Loan Party, so long the security interests in the Collateral of such Loan Party shall remain in full force and effect and perfected to the same extent as prior to such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if anychange;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) (x) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrowerits Subsidiaries) or (B) otherwise economically impracticable to maintainmaintain and (y) any assets acquired in connection with the acquisition of another Person or a division or line of business of such Person which the Borrower reasonably determines are surplus assets;
(f) Dispositions of Cash and/or Cash Equivalents and/or or other assets that were Cash Equivalents when the relevant original Investment was mademade (in each case, for the fair market value thereof);
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Liens, Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix6.04(a)(x))) and Sale and Lease-back Transactions permitted by Section 6.08;
(h) Dispositions for fair market value, as determined by the Borrower in good faith; provided that with respect to any such Disposition involving assets with a purchase price in an aggregate amount in excess of the greater of (x) $45,000,000 12,000,000 and 0.35(y) 10% of Consolidated Total Assets Adjusted EBITDA of the Borrower, as of the last day of the most recently ended Test Period calculated on a Pro Forma Basisfor which financial statements are available, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, requirement (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 a Subsidiary) of the Borrower or any Restricted applicable Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets and for which the Borrower and/or and its applicable Restricted Subsidiary Subsidiaries shall 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 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of (A) $105,000,000 25,000,000 and 0.75(B) 20% of Consolidated Total Assets Adjusted EBITDA of the Borrower, as of the last day of the most recently ended Test PeriodPeriod for which financial statements are available, in each case, shall be deemed to be Cash); provided, further, that (xi) immediately prior to and after giving effect to such Disposition, no Event of Default shall have occurred that is continuing on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists executed and (yii) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii2.10(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures or any Subsidiary that is not a Wholly-Owned Subsidiary to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions Dispositions, discounting or forgiveness of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any an open source license), which (i) the Disposition or termination of which will do not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed branches or manufacturing facilities or the discontinuation of any product or service line;
(m) (i) any termination of any lease leases in the ordinary course of business, (ii) any the expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to casualty, foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions Disposition or consignments consignment, license, sublicense, conveyance of equipment, inventory or other assets (including fee and leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed; provided, that the Net Proceeds of any such Disposition of fee owned Real Estate Assets shall be applied and/or reinvested as (and to the extent) required by Section 2.10(b)(ii);
(p) Dispositions of Real Estate Investments in connection with the ordinary course of business (as determined in good faith by the Borrower)Transactions;
(q) Disposition Dispositions of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary acquired in connection with an acquisition permitted hereunder and sales of Real Estate Assets acquired in an acquisition permitted hereunder which, within 90 days of the date of the acquisition, are designated in writing to the business or operations Administrative Agent as being held for sale and not for the continued operation of the Borrower and or any of its Restricted Subsidiaries or any of their respective businesses; provided that (i) the Net Proceeds received in connection with any such Dispositions shall be applied and/or reinvested as (and to the extent) required by Section 2.10(b)(ii) and (ii) made in connection with no Event of Default shall have occurred and be continuing on the approval of any applicable antitrust authority or otherwise necessary or advisable in date on which the good faith determination of definitive agreement governing the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as any such the exchange or swap is made for fair value (as reasonably determined by the Borrower) for like property or assets; provided that, upon the consummation that (i) within 90 days of any such exchange or swap by swap, in the case of any Loan Party, Party and to the extent the assets received do such property does not constitute an “Excluded Asset” (as defined in the U.S. Pledge and Security Agreement), the Administrative Agent has a perfected Lien with having the same priority as the any Lien held on the Real Estate Assets so exchanged or swappedswapped and (ii) any Net Proceeds received as “cash boot” in connection with any such transaction shall be applied and/or reinvested as (and to the extent required) by Section 2.10(b)(ii);
(s) [reserved]other Dispositions for fair market value, as determined by the Borrower in good faith, in an aggregate amount since the Closing Date of not more than the greater of (i) $12,000,000 and (ii) 10% of Consolidated Adjusted EBITDA of the Borrower, as of the last day of the most recently ended Test Period for which financial statements are available;
(t) (i) Dispositions, licensing, sublicensing and cross-licensing arrangements involving any technology or IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and business, (ii) Dispositionsthe Disposition, abandonmentsabandonment, cancellations cancellation or lapses lapse of IP Rights, or any issuances or registrations, or applications for issuances or registrations, of any IP Rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business good faith determination of the Borrower or its Restricted Subsidiaries, or Subsidiaries are no longer economical economically practicable to maintain maintain, worth the cost of maintaining, or used or useful in light any material respect, or (iii) Dispositions of its useIP Rights through expiration in accordance with their respective statutory terms;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales sale of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower or any Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(y) Dispositions of assets in connection with the closing or sale of an office in the ordinary course of business of the Borrower and the Subsidiaries, which consist of leasehold interests in the premises of such office, the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such office; provided that as to each and all such sales and closings, (i) on the date on which the agreement governing such Disposition is executed, no Event of Default shall result and (ii) such sale shall be on commercially reasonable prices and terms in a bona fide arm’s-length transaction;
(z) any the sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value of letters of credit and/or bank guarantees (as reasonably determined by and/or the Borrower at rights thereunder) to banks or other financial institutions in the time ordinary course of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis business in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;exchange for Cash and/or Cash Equivalents; and
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of accounts receivable, Securitization Assets to a Securitization Subsidiary; providedAssets, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) participations thereof, or related assets in connection with or any Qualified Securitization FinancingFacility. To the extent that any Collateral is Disposed disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall automatically be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereofforegoing.
Appears in 2 contracts
Samples: Incremental Joinder to First Lien Credit Agreement (Post Holdings, Inc.), First Lien Credit Agreement (Post Holdings, Inc.)
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its the Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value (as determined in good faith by the Borrower) in excess of $13,000,000, in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall (x) expressly assume all of the Secured Obligations of the Borrower under each of the Loan Documents pursuant to documents and in a manner reasonably satisfactory to the Administrative Agent (and the Successor Borrower shall have provided customary certificates, board resolutions, customary legal opinions and other customary documents with respect to such assumption, if and to the extent reasonably requested by, and reasonably satisfactory to the Administrative Agent), and (y) such Successor Borrower shall become a “Borrower” and the “Company” hereunder and (z) except as the Administrative Agent may otherwise agree, each other Borrower and each Loan Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under this Agreement, if applicable, the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into any Loan Guarantor or the Borrower or (other than any Subsidiary Guarantorsuch transaction involving the Borrower, which shall be subject to the terms of clause (i) above), either (1x) a Loan Guarantor or the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the relevant Loan Guarantor or Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.066.04;
(b) Dispositions (including of Capital Stock) among the Borrower and/or or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as determined in good faith by such Person) with at least 75.0% of the consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition and no Event of Default shall then exist or immediately result therefrom or (ii) treated as an Investment and otherwise constitute a result Permitted Investment (other than a Permitted Investment of a Divisionthe type described in clause (j) of the definition thereof) or be made in compliance with Section 6.04(a);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any a Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 either be a Permitted Investment (other than a Permitted Investment of the type described in reliance on clause (j) of the definition thereof) or be made in compliance with Section 6.04(a); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under constituting a Permitted Investment or made in compliance with Section 6.066.04(a); and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.
Appears in 2 contracts
Samples: Credit Agreement (Victory Capital Holdings, Inc.), Credit Agreement (Victory Capital Holdings, Inc.)
Fundamental Changes; Disposition of Assets. The Parent Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Parent Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Parent Borrower, (1A) the Parent Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Parent Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Parent Borrower in a manner reasonably satisfactory to the Administrative Agent and concurrently with the consummation of such merger, consolidation or amalgamation, 100% of the Capital Stock of the Successor Borrower shall be pledged to the Administrative Agent for the benefit of the Secured Parties and (z)
(1) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan DocumentsDocuments and (2) upon its reasonable request, the Administrative Agent shall have received customary legal opinions; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the guarantee obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06; provided, further, that any Restricted Subsidiary (other than Ecovyst) may be merged, consolidated or amalgamated with or into the Parent Borrower or any other Restricted Subsidiary in connection with the Permitted Restructuring;
(b) Dispositions (including of Capital Stock) among the Parent Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for Fair Market Value with at least 75% of the consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (including ii) treated as a result of a Divisionan Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Parent Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Parent Borrower, is not materially disadvantageous to the Lenders and the Parent Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Parent Borrower or any Restricted Subsidiary may be converted into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Parent Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Parent Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market valueFair Market Value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 81,000,000 and 0.3540.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisAdjusted EBITDA, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided Equivalents; provided, that for purposes of the 75% Cash consideration requirement, (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 Parent Borrower or any Restricted Subsidiary) of the Parent Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets and for which the Parent 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 assets acquired in connection with such Disposition, (y) any Securities received by the Parent 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 one hundred eighty (180) days following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 81,000,000 and 0.7540.0% of Consolidated Total Assets as of the last day of the most recently ended Test PeriodAdjusted EBITDA, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists shall exist and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) and any factoring or similar arrangement or in connection with the collection or compromise thereofof any of the foregoing;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), which (i) the Disposition or termination of which will do not materially interfere with the business of the Parent Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in connection with the ordinary course of business (as determined in good faith by the Borrower)Transactions;
(q) Disposition Dispositions of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made acquired in connection with the approval any acquisition permitted hereunder and sales of any applicable antitrust authority or otherwise necessary or advisable Real Estate Assets acquired in the good faith determination of the Borrower to consummate any acquisition permitted hereunder; provided that (i) the Net Proceeds received in connection with any such Disposition shall be applied and/or reinvested as (and to the extent required) by Section 2.11(b)(ii) and (ii) no Event of Default exists on the date on which the definitive agreement governing the relevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Parent Borrower) for like property or assets; provided that, that (i) upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets property received do does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swappedswapped and (ii) any Net Proceeds received as “cash boot” in connection with any such transaction shall be applied and/or reinvested as (and to the extent required) by Section 2.11(b)(ii);
(s) [reserved]Dispositions set forth on Schedule 6.07(s);
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Parent Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the Parent Borrower, are not material to the conduct of the business of the Parent Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Parent Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority agency of the U.S. Federal government, any state, authority or other regulatory body or any applicable Requirement of Law;
(y) any merger, amalgamation, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by Fair Market Value in the Borrower at the time of the relevant Disposition) aggregate in any Fiscal Year of not more than the greater of $50,000,000 71,000,000 and 0.3635.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis Adjusted EBITDA, which if not used in any Fiscal Year, which, if not used in such Fiscal Year, shall may be carried forward to succeeding subsequent Fiscal Years;
(bb) so long as Sale and Lease-Back Transactions of assets having a Fair Market Value in the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition aggregate of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less not more than the fair market value greater of such property at the time $102,000,000 and 50.0% of such Disposition as determined by the Borrower in good faith; andConsolidated Adjusted EBITDA;
(cc) any Disposition Dispositions or conveyances that arise out of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 relate to any Person other than a Loan Party, such Collateral shall be sold free and clear of (i) Specified Lease Transaction or (ii) NMTC Transaction; (dd) Dispositions or conveyances to consummate the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such DispositionPermitted Restructuring; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.and
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Ecovyst Inc.), Term Loan Credit Agreement (PQ Group Holdings Inc.)
Fundamental Changes; Disposition of Assets. The No Borrower shall notshall, nor shall it any Borrower permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition Disposition, in a single transaction or in a series of any assetsrelated transactions, except:
(a) (i) any Restricted Subsidiary (other than a Borrower) may be merged, consolidated or amalgamated with or into the any Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person ifSubsidiary; provided, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a); provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the a Borrower, (1A) the such Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving or continuing following any such merger, consolidation or amalgamation is not the a Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S.US, any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the such Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the such Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the any Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided, that any such Disposition made by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary (other than a Borrower) if the any Borrower determines in good faith that such liquidation or dissolution is in the best interests of the such Borrower, is not materially disadvantageous to the Lenders and the any Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided provided, that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (aSection 6.07(a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the any Borrower or any Restricted Subsidiary into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or the Collateral, if any, taken as a whole;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property equipment or assets, inventory, equipment and other immaterial assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the BorrowerBorrower Representative, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the or any Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Liens, Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and Sale and Lease-Back Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided provided, that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 US$11,000,000 and 0.3510% of Consolidated Total Assets as Adjusted EBITDA of the last day of Borrowers and their Restricted Subsidiaries for the most recently ended Test Period calculated on a Pro Forma BasisPeriod, as applicable, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided provided, that for purposes of the 75% Cash consideration requirement, (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 any Borrower or any Restricted Subsidiary) of the any Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets and for which the Borrower Borrowers and/or its their 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 assets acquired in connection with such Disposition, (y) any Securities received by the any 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Non- Cash Consideration received pursuant to this clause (z) and clause (B)(1) of the proviso in Section 6.08 that is at that time outstanding, not in excess of the greater of $105,000,000 US$11,000,000 and 0.7510% of Consolidated Total Assets Adjusted EBITDA of the Borrowers and their Restricted Subsidiaries as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists shall exist and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) thereof and any factoring or similar arrangement), in connection with the collection or compromise thereofthereof or in connection with any Permitted Receivables Financing;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), which (i) the Disposition or termination of which will do not materially interfere with the business of the Borrower Borrowers and its their Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in connection with the ordinary course of business (as determined in good faith by the Borrower)Transactions;
(q) Disposition Dispositions of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations and sales of the Borrower and its Restricted Subsidiaries or (ii) made Real Estate Assets, in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable each case, acquired in the good faith determination of the Borrower to consummate any acquisition permitted hereunderhereunder which, within 90 days of the date of such acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of any Borrower or any Restricted Subsidiary or any of their respective businesses; provided, that no Event of Default exists on the date on which the definitive agreement governing the relevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange or swap is made for fair value (as reasonably determined by the BorrowerBorrower Representative) for like property or assets; provided thatprovided, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets property received do does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved]Dispositions of assets that do not constitute Collateral for fair market value;
(i) licensing, sublicensing non-exclusive licensing and cross-licensing arrangements involving any technology, intellectual property or other IP Rights of the any Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the BorrowerBorrower Representative, are not material to the conduct of the business of the Borrower Borrowers or its their Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, any Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement Requirements of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic US Subsidiary in another jurisdiction in the U.S. US and/or (ii) any Foreign Non-US Subsidiary in the U.S. US, Canada or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions contemplated on the Closing Date and described on Schedule 6.07 hereto; and
(bb) other Dispositions involving assets having a fair market value (as reasonably determined by the Borrower Representative at the time of the relevant Disposition) in the aggregate in any Fiscal Year of not more than the greater of $50,000,000 US$11,000,000 and 0.3610% of Consolidated Total Assets as Adjusted EBITDA of the last day of Borrowers and their Restricted Subsidiaries for the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization SubsidiaryPeriod; provided, that any amount of Dispositions permitted by this clause (bb) that is not used in any given Fiscal Year will added to the amount permitted by this clause (bb) in the subsequent Fiscal Year and, for the avoidance of doubt, such Disposition shall be for no less than amount may continue to accrue in each subsequent Fiscal Year to the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financingextent not utilized. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate reasonably requested by the Borrower Representative in order to effect the foregoing in accordance with Article 8 hereof8.
Appears in 2 contracts
Samples: Credit Agreement (Knowlton Development Corp Inc), Credit Agreement (Knowlton Development Parent, Inc.)
Fundamental Changes; Disposition of Assets. The Other than the Transactions, the Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value in excess of $25,000,000 in a single transaction or a series of related transactions and in excess of $50,000,000 in the aggregate for all such transactions per year, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by any Loan Party to any Person that is not a Loan Party shall be (c) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (d) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.
Appears in 2 contracts
Samples: Credit Agreement (CCC Intelligent Solutions Holdings Inc.), Credit Agreement (CCC Intelligent Solutions Holdings Inc.)
Fundamental Changes; Disposition of Assets. The Borrower shall notNone of the Loan Parties shall, nor shall it they permit any of its Restricted their Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves itself (or suffer any liquidation or dissolution), or otherwise make any Disposition Disposition, in a single transaction or a series of any assetsrelated transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower a Loan Party or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such a merger, consolidation or amalgamation with or into the Borrowera Borrower or any Closing Date Guarantor, (1) the such Borrower or such Closing Date Guarantor, as applicable, shall be the continuing or surviving Person or (2) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisiona merger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor (other than a Closing Date Guarantor), either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the guarantee obligations of the Borrower or such Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant such transaction shall be treated as an Investment and shall comply with Section 6.066.03 (other than in reliance on clause (j) thereof); provided, further, than no U.S. Loan Party may be merged, consolidated or amalgamated with or into a Subsidiary that is not a U.S. Loan Party;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary members of the Combined Group (upon voluntary liquidation or otherwise); provided that any such Disposition by a Loan Party to a Person that is not a Loan Party or by a Specified Loan Party to a Person that is not a Specified Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) so long as any consideration received in the form of a Divisionintercompany Indebtedness shall meet the requirements set forth in clause (ii) below or (ii) treated as an Investment and otherwise made in compliance with Section 6.03 (other than in reliance on clause (j) thereof);
(ic) the liquidation or dissolution of any Restricted Subsidiary if the Borrower Representative determines in good faith that such liquidation or dissolution is in the best interests of the BorrowerLoan Parties, is not materially disadvantageous to the Lenders and the Borrower either a Loan Party or any Restricted a Subsidiary receives any assets of the relevant such dissolved or liquidated Restricted Subsidiary; provided that in the case of any a dissolution or liquidation or dissolution of any a Loan Party that results in a distribution of assets to any Restricted Subsidiary a subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 6.03 (other than in reliance on clause (j) thereof); (ii) provided, further, in the case of a change in the form of an entity of any merger or Division, amalgamation, dissolution, liquidation or consolidationSubsidiary that is a Loan Party, the purpose of which is security interests in the Collateral shall remain in full force and effect and perfected to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long same extent as prior to such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if anychange;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the BorrowerBorrower Representative, is (A) no longer useful in its the business of any of the Loan Parties (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintaintheir Subsidiaries);
(f) Dispositions sales of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when for the relevant original Investment was madefair market value thereof in the ordinary course of business;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to under Section 6.06 6.03 (other than Section 6.06(jpursuant to clause (j) or (n)), (x) Permitted Liens and (y) Liens, Restricted Payments permitted by under Section 6.04(a) (other than pursuant to clause (i)) and Sale and Lease-Back Transactions permitted under Section 6.04(a)(ix))6.09;
(h) Dispositions of any assets of any Loan Party or any Subsidiary for fair market value; provided that (A) with respect to any such Disposition, as determined on the date on which the agreement governing such Disposition involving assets with a purchase price is executed, the aggregate fair market value of all property Disposed of in excess reliance on this clause (h) (including such Disposition) shall not exceed the lesser of (x) 10% of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basisfor which financial statements have been delivered pursuant to Section 5.01, and (y) $75,000,000, and (B) at least 75% of the consideration for each such Disposition made in reliance on this clause (h) shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, requirement (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 any Loan Party or any Restricted Subsidiary) of the Borrower any Loan Party or any Restricted Subsidiary (as shown on such Personperson’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets and for which the Borrower and/or its applicable Restricted Subsidiary Loan Parties and their Subsidiaries shall 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 any Loan Party 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, 5,000,000 in each case, shall be deemed to be Cash); provided, further, that (xi) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists shall exist and (yii) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii2.10(b)(ii);
(i) to the extent that (i) the relevant property is or assets are exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures or any Subsidiary that is not a Wholly-Owned Subsidiary to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions Dispositions, discounting or forgiveness of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any an open source license), in each case in the ordinary course of business, which (i) the Disposition or termination of which will do not materially interfere with the business of the Borrower Loan Parties and its Restricted their Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product linefacilities;
(m) (i) any termination of any lease leases in the ordinary course of business, (ii) any the expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closedthe Transactions may be consummated;
(p) Dispositions of non-core assets acquired in connection with an acquisition permitted hereunder and sales of Real Estate Investments Assets acquired in an acquisition permitted hereunder which, within 30 days of the ordinary course date of business the acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of the Loan Parties’ businesses (or that of any Subsidiary); provided that (i) the Net Proceeds received in connection with any such Dispositions shall be applied and/or reinvested as determined in good faith (and to the extent required) by the Borrower)Section 2.10(b)(ii) and (ii) no Event of Default shall have occurred and be continuing or would result therefrom;
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), ) of assets Real Estate Assets so long as any such the exchange or swap is made for fair value (as reasonably determined by the Borrower) and on an arms’ length basis for like assetsother Real Estate Assets; provided that, that (i) upon the consummation of any such exchange or swap by swap, in the case of any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with having the same priority as the any Lien held on the Real Estate Assets so exchanged or swappedswapped and (ii) any Net Proceeds received as “cash boot” in connection with any such transaction shall be applied and/or reinvested as (and to the extent required) by Section 2.10(b)(ii);
(sr) [reserved]other Dispositions for fair market value in an aggregate amount since the ClosingThird Amendment Effective Date of not more than $7,500,000;
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrower Loan Parties or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositionsthe abandonment, abandonments, cancellations cancellation or lapses lapse of IP Rights, or any issuances or registrations, or applications for issuances or registrations, of any IP Rights, which, in the reasonable business judgment good faith determination of the Borrowerapplicable Loan Party, are not material to necessary for the conduct of the business of the Borrower or such Loan Party and its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(ut) terminations or unwinds of Derivative Transactions;; and
(vu) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 6.06 to any Person other than a Loan PartyParty or, if an Event of Default is continuing or would result therefrom, any other Subsidiary, such Collateral shall automatically be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereofforegoing.
Appears in 2 contracts
Samples: Credit Agreement (Osmotica Pharmaceuticals PLC), Credit Agreement (Osmotica Pharmaceuticals LTD)
Fundamental Changes; Disposition of Assets. The Top Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value in excess of $12,250,000, in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Top Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Top Borrower, (1A) the Top Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Top Borrower (any such Person, the “Successor Top Borrower”), (x) the Successor Top Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Top Borrower shall expressly assume the Obligations of the Top Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Top Borrower will succeed to, and be substituted for, the Top Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into any Borrower (other than the Borrower Top Borrower) or any Subsidiary Guarantor, either (1x) the a Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the relevant Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Top Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Top Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Top Borrower, is not materially disadvantageous to the Lenders and the Top Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Top Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Top Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Top Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and Liens, (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and (z) Sale-Leaseback Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 25,000,000 and 0.3515% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 Top Borrower or any Restricted Subsidiary) of the Top Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets and for which the Top 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 assets acquired in connection with such Disposition, (y) any Securities received by the Top 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) and Section 6.08(B)(1) that is at that time outstanding, not in excess of the greater of $105,000,000 61,000,000 and 0.7536% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or of termination of which will not materially interfere with the business of the Top Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions to the extent constituting a Disposition, the consummation of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)Transaction;
(q) Disposition Dispositions of any non-core assets (i) acquired in a connection with any acquisition or other investment permitted hereunderhereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, which assets are (x) not used or useful in the ordinary course or the principal business within 90 days of the date of such acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of the Top Borrower and or any of its Restricted Subsidiaries or (y) non-core assets or unnecessary to any of their respective businesses; provided that no Event of Default exists on the business or operations of date on which the Borrower and its Restricted Subsidiaries or (ii) made in connection with definitive agreement governing the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Top Borrower) for like assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved]Dispositions of assets that do not constitute Collateral for fair market value;
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Top Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the Top Borrower, are not material to the conduct of the business of the Top Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Top Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) other Dispositions involving assets having a fair market value (as reasonably determined by the Top Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis 18,000,000 in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;; and
(bb) so long as Dispositions contemplated on the Borrower would be in compliance with Section 6.13(a) Closing Date and described on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingSchedule 6.07 hereto. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Cotiviti Holdings, Inc.), Second Lien Credit Agreement (Cotiviti Holdings, Inc.)
Fundamental Changes; Disposition of Assets. The Lead Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Lead Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the US Borrower, (1A) the US Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the US Borrower (any such Person, the “US Successor Borrower”), (x) the US Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the US Successor Borrower shall expressly assume the Obligations of the US Borrower in a manner reasonably satisfactory to the Administrative Agent and concurrently with the consummation of such merger, consolidation or amalgamation, 100% of the Capital Stock of the US Successor Borrower shall be pledged to the Administrative Agent for the benefit of the Secured Parties and (z)
(1) except as the Administrative Agent may otherwise agree, each applicable Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan DocumentsDocuments and (2) upon its reasonable request, the Administrative Agent shall have received customary legal opinions; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the US Successor Borrower will succeed to, and be substituted for, the US Borrower under this Agreement and the other Loan Documents, (ii) in the case of any such merger, consolidation or amalgamation with or into the Canadian Borrower, (A) the Canadian Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the applicable Canadian Borrower (any such Person, a “Canadian Successor Borrower”), (x) the Canadian Successor Borrower shall be a Canadian Person, (y) the Canadian Successor Borrower shall expressly assume the Obligations of the Canadian Borrower in a manner reasonably satisfactory to the Administrative Agent and concurrently with the consummation of such merger, consolidation or amalgamation, (i) 65% of the Capital Stock of the Canadian Successor Borrower shall be pledged to the Administrative Agent to secure the US Secured Obligations and (ii) 100% of the Capital Stock of the Canadian Successor Borrower shall be pledged to the Administrative Agent to secure the Canadian Secured Obligations and (z)
(1) except as the Administrative Agent may otherwise agree, each applicable Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents and (2) upon its reasonable request, the Administrative Agent shall have received customary legal opinions; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Canadian Successor Borrower will succeed to, and be substituted for, the applicable Canadian Borrower under this Agreement and the other Loan Documents, and (Biii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the guarantee obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Lead Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for Fair Market Value with at least 75% of the consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (including ii) treated as a result an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof); provided, further, that the Lead Borrower shall deliver an updated Borrowing Base Certificate at any time the amount of a Division)assets Disposed of pursuant to this clause (b) reduces the Borrowing Bases by more than $10,000,000;
(i) the liquidation or dissolution of any Restricted Subsidiary (other than the Canadian Borrower) if the Lead Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Lead Borrower, is not materially disadvantageous to the Lenders and the Lead Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Lead Borrower or any Restricted Subsidiary may be converted into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Lead Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Lead Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Liens, Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and Sale and Lease-back Transactions permitted by Section 6.08;
(h) Dispositions for fair market valueFair Market Value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 65,000,000 and 0.3540.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisAdjusted EBITDA, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided Equivalents; provided, that for purposes of the 75% Cash consideration requirement, (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 Lead Borrower or any Restricted Subsidiary) of the Lead Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets and for which the Lead 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 assets acquired in connection with such Disposition, (y) any Securities received by the Lead 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) and Section 6.08(B)(1)(z) that is at that time outstanding, not in excess of the greater of $105,000,000 50,000,000 and 0.7530.0% of Consolidated Total Assets as of the last day of the most recently ended Test PeriodAdjusted EBITDA, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists shall exist and (y) an updated Borrowing Base Certificate shall be delivered to the Net Proceeds of Administrative Agent to the extent such Disposition shall causes the Borrowing Base to be applied and/or reinvested as (and to the extent) required reduced by Section 2.11(b)(ii)greater than $10,000,000;
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) and any factoring or similar arrangement or in connection with the collection or compromise thereofof any of the foregoing;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), which (i) the Disposition or termination of which will do not materially interfere with the business of the Lead Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in connection with the ordinary course of business (as determined in good faith by the Borrower)Transactions;
(q) Disposition Dispositions of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made acquired in connection with the approval any acquisition permitted hereunder and sales of any applicable antitrust authority or otherwise necessary or advisable Real Estate Assets acquired in the good faith determination of the Borrower to consummate any acquisition permitted hereunder; provided that no Event of Default exists on the date on which the definitive agreement governing the relevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Lead Borrower) for like property or assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets property received do does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved]Dispositions set forth on Schedule 6.07(s);
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Lead Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the Lead Borrower, are not material to the conduct of the business of the Lead Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Lead Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority agency of the U.S. Federal government, any state, authority or other regulatory body or any applicable Requirement of Law;
(y) any merger, amalgamation, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S., (ii) any Canadian Loan Party in the U.S. and/or (iiiii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;; and
(aa) Dispositions involving assets having a fair market value (as reasonably determined by Fair Market Value in the Borrower at aggregate since the time of the relevant Disposition) Closing Date of not more than the greater of $50,000,000 60,000,000 and 0.3635.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingAdjusted EBITDA. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof8.
Appears in 2 contracts
Samples: Abl Credit Agreement (Hayward Holdings, Inc.), Abl Credit Agreement (Hayward Holdings, Inc.)
Fundamental Changes; Disposition of Assets. (a) The Borrower shall Credit Parties will not, nor shall it and will not permit any of its Restricted Subsidiaries Subsidiary to, enter into any transaction of merger, consolidation merge or amalgamation, consummate a Division as the Dividing Personconsolidate, or liquidate, wind wind-up or dissolve themselves itself (or suffer any liquidation or dissolution), or sell, transfer, lease or otherwise make dispose of all or any Disposition part of its assets (including any assetsEquity Interest), whether now owned or hereafter acquired, leased or licensed, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or merge into the Borrower or any other Restricted Subsidiary and in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Person may merge into or consolidate with any Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 transaction in which the surviving entity is a Subsidiary (other than Section 6.07(aand, if any party to such merger or consolidation is a Subsidiary Guarantor, is a Subsidiary Guarantor); provided that (A) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1) the Borrower shall be the continuing or surviving Person or (2) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into the Borrower or any involving a Person that is not a Wholly-Owned Subsidiary Guarantor, either (1) the Borrower or a Subsidiary Guarantor immediately prior thereto shall not be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2) the relevant transaction shall be treated as an Investment and shall comply with permitted unless it is also permitted by Section 6.066.6;
(biii) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation may liquidate or otherwise) (including as a result of a Division);
(i) the liquidation or dissolution of any Restricted Subsidiary dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, Borrower and is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Division, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if anyLenders;
(div) (x) Dispositions of obsoletesales, damaged or worn out property or assets, inventory, equipment transfers and other assets in the ordinary course dispositions of business (as determined in good faith by the management of the Borrower)equipment, Cash and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) and (y) the leasing or subleasing of real property Cash Equivalents in the ordinary course of business;
(ev) Dispositions of surplussales, obsoletetransfers, used or worn out property or leases and other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 dispositions 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 in the notes thereto)) ; provided that are assumed by the transferee of any such assets and for which the Borrower and/or its applicable Restricted sales, transfers, leases or other dispositions involving a 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 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, a Credit Party shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists made in compliance with Sections 6.6 and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii)6.11;
(ivi) sales, transfers and other dispositions of property to the extent that (iA) the relevant such property is exchanged for credit against the purchase price of similar replacement property or (iiB) the proceeds of the relevant Disposition such dispositions are promptly applied to the purchase price of such similar replacement property;
(jvii) Restricted Payments permitted by Section 6.4 and Liens permitted by Section 6.2;
(viii) sales, transfers and other dispositions of accounts receivable in connection with the collection or compromise thereof (but not as part of any financing transaction);
(ix) transfers of property subject to Insurance/Condemnation Events upon receipt of the Net Proceeds of such Insurance/Condemnation Events;
(x) abandonment, cancellation or other disposition of Intellectual Property in the ordinary course of business to the extent the loss of such Intellectual Property will not materially interfere with the ordinary conduct of the business of the Borrower or any of its Subsidiaries;
(xi) licenses, subleases or access, colocation or similar agreements in the ordinary course of business between the Borrower or any of its Subsidiaries and customers or users of any Facility;
(xii) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar related binding arrangements;agreements; and
(kxiii) Dispositions sales, transfers, leases and other dispositions of notes receivable or accounts receivable in the ordinary course assets that are not permitted by any other clause of business this Section 6.8(a); provided that (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (iA) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or aggregate fair value (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business management of the Borrower and its Restricted Subsidiaries (or (ysimilar governing body) non-core of all assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority sold, transferred, leased or otherwise necessary or advisable disposed of in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
reliance on this clause (rvi) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do shall not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of exceed $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in 1,000,000 during any Fiscal Year, which(B) the consideration received therefor shall be in an amount at least equal to the fair value thereof, if (C) no less than 75% of the consideration received therefor shall be in the form of Cash or Cash Equivalents and (D) the Net Proceeds thereof shall be applied as required by Section 2.14(a).
(b) Notwithstanding anything to the contrary set forth herein, (i) the Credit Parties will not, and will not used permit any Subsidiary to, sell, transfer or otherwise dispose of any Equity Interests in any Subsidiary unless (A) such Equity Interests constitute all the Equity Interests in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as Subsidiary held by the Borrower would and the Subsidiaries and (B) immediately after giving effect to such transaction, the Credit Parties shall be in compliance with Section 6.13(a6.6 and (ii) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower will not permit any Subsidiary to issue any additional Equity Interest in good faith; and
(cc) any Disposition of Securitization Assets (such Subsidiary other than (A) to a Securitization Subsidiarythe Borrower or any Subsidiary in compliance with Section 6.6, (B) or related assets in connection with any Qualified Securitization Financing. To the extent directors’ qualifying shares and (C) other nominal amounts of Equity Interests that any Collateral is Disposed of as expressly permitted are required to be held by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereofPersons under applicable law.
Appears in 2 contracts
Samples: Credit and Guarantee Agreement (Telx Group, Inc.), Credit and Guarantee Agreement (Telx Group, Inc.)
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value in excess of the greater of $2,000,000 and 1% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period in a single transaction or in a series of related transactions and in excess of the greater of $12,000,000 and 6% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period in the aggregate for all such transactions in any Fiscal Year, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person (and, if with or into the Borrower, the Borrower shall be the continuing or surviving Person) or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law laws of the U.S.US, any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and the Administrative Agent shall have received all documentation and other information reasonably requested with respect to Successor Borrower, which documentation or other information is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty Guarantee and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary GuarantorLoan Party, either (1x) the Borrower or a such Subsidiary Guarantor Loan Party shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or a Subsidiary Guarantor Loan Party in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders Lenders, and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause Sections 6.07(a) or (b) or this clause (cSection 6.07(c)) or (B) any Investment permitted under Section 6.066.06 (other than in reliance on clause (j) thereof); and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty Guarantee or the Collateral, if anytaken as a whole;
(d) (x) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Leslie's, Inc.), Term Loan Credit Agreement (Leslie's, Inc.)
Fundamental Changes; Disposition of Assets. The Other than as part of any Permitted Practice Subsidiary Restructuring, the Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value in excess of $2,000,000 in a single transaction or a series of related transactions (or, in the case of any single transaction or a series of related transactions from and after the Second Amendment Effective Date, $1,000,000) and in excess of $5,000,000 in the aggregate for all such transactions (or, in the case of all such transactions from and after the Second Amendment Effective Date, $2,000,000), except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower or any Delaware LLC Division relating to the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation or Delaware LLC Division is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and the Lender Representative and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; , it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower any Subsidiary Guarantor or any Delaware LLC Division relating to any Subsidiary Guarantor, either (1A) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or such Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent and the Lender Representative or (2B) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation liquidation, dissolution or dissolution Delaware LLC Division of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation liquidation, dissolution or dissolution Delaware LLC Division is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation liquidation, dissolution or dissolution Delaware LLC Division of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); , (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation liquidation, consolidation or consolidationDelaware LLC Division, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; 6.06 and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property equipment or assets, inventory, equipment and other immaterial assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions in the ordinary course of business of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis10,000,000, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (wi) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated (in right of payment or with respect to security) 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 in 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, (xii) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (yiii) any Securities Security received by the Borrower or any Restricted Subsidiary from such transferee that are is 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 (ziv) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (ziv) that is at that time outstanding, not in excess of $20,000,000 during the greater term of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Periodthis Agreement, in each case, shall be deemed to be Cash);; provided, further, that (xA) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a)exists, (f) or (g) exists and (yB) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii)) and (C) this Section 6.07(h) shall not permit a Disposition of all or substantially all of the assets of the Borrower and its Restricted Subsidiaries;
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof; provided that factoring or similar arrangements shall not be permitted pursuant to this clause (k);
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions [reserved]to the extent applicable, the consummation of Real Estate Investments in the ordinary course of business (as determined in good faith by Second Amendment Effective Date Transactions on the Borrower)Second Amendment Effective Date;
(q) Disposition Dispositions of any non-core assets (i) acquired in a connection with any acquisition or other investment permitted hereunderhereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, which assets within 90 days of the date of such acquisition, are (x) designated in writing to the Administrative Agent as being held for sale and not used or useful in for the ordinary course or the principal business continued operation of the Borrower and or any of its Restricted Subsidiaries or any of their respective businesses; provided that (yA) non-core assets or unnecessary no Event of Default exists on the date on which the definitive agreement governing the relevant Disposition is executed, (B) such Dispositions are for fair market value and (C) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the business or operations of the Borrower and its Restricted Subsidiaries or (iiextent) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunderrequired by Section 2.11(b)(ii);
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing non-exclusive licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries[reserved];
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary; provided that such Dispositions do not exceed $5,000,000 in the aggregate;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) [reserved]; and
(bb) Dispositions involving assets having a in connection with Sale and Lease-Back Transactions; provided that, in the case of this clause (bb), the fair market value (as reasonably determined by of all property so Disposed of after the Borrower at the time of the relevant Disposition) of Closing Date shall not more than exceed the greater of $50,000,000 5,000,000 and 0.367.5% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis Period. Dispositions in any Fiscal Year, which, if not used in such Fiscal Year, shall connection with Sale and Lease-Back Transactions may be carried forward to succeeding Fiscal Years;
made solely under clause (bb) so long as the Borrower would be in compliance with of this Section 6.13(a) on a Pro Forma Basis, 6.07 and not under any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financingclause. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party6.07, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof; provided, that in the case of a Disposition made to any Loan Party, the relevant transferred assets shall become part of the Collateral of the transferee Loan Party (except to the extent such assets constitute Excluded Assets of such transferee Loan Party). Notwithstanding the foregoing, this Section 6.07 shall not permit any IP Separation Transaction.
Appears in 2 contracts
Samples: Credit Agreement (ATI Physical Therapy, Inc.), Credit Agreement (ATI Physical Therapy, Inc.)
Fundamental Changes; Disposition of Assets. The Borrower Other than as part of any Permitted Practice Subsidiary Restructuring, the Issuer shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value in excess of $1,200,000 in a single transaction or a series of related transactions and in excess of $3,000,000 in the aggregate for all such transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower Issuer or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the BorrowerIssuer or any Delaware LLC Division relating to the Issuer, (1A) the Borrower Issuer shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation or Delaware LLC Division is not the Borrower Issuer (any such Person, the “Successor BorrowerIssuer”), (x) the Successor Borrower Issuer shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower Issuer shall expressly assume the Obligations of the Borrower Issuer in a manner reasonably satisfactory to the Administrative Agent Required Purchasers and (z) except as the Administrative Agent Required Purchasers may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Note Guaranty and the other Loan Note Documents; , it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower Issuer will succeed to, and be substituted for, the Borrower Issuer under this Agreement and the other Loan Note Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower any Subsidiary Guarantor or any Delaware LLC Division relating to any Subsidiary Guarantor, either (1A) the Borrower Issuer or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or such Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent Required Purchasers or (2B) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower Issuer and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by any Note Party to any Person that is not a Note Party shall be (i) for fair market value (including as a result reasonably determined by the Issuer) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation liquidation, dissolution or dissolution Delaware LLC Division of any Restricted Subsidiary if the Borrower Issuer determines in good faith that such liquidation liquidation, dissolution or dissolution Delaware LLC Division is in the best interests of the BorrowerIssuer, is not materially disadvantageous to the Lenders Purchasers and the Borrower Issuer or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation liquidation, dissolution or dissolution Delaware LLC Division of any Loan Note Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Note Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation liquidation, consolidation or consolidationDelaware LLC Division, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower Issuer or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Note Guaranty or Collateral, if any;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property equipment or assets, inventory, equipment and other immaterial assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the BorrowerIssuer, is (Ai) no longer useful in its business (or in the business of any Restricted Subsidiary of the BorrowerIssuer) or (Bii) otherwise economically impracticable to maintain;
(f) Dispositions in the ordinary course of business of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (wi) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (xii) Permitted Liens and (yiii) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash)Equivalents; provided, further, that (xA) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a)exists, (fB) or (g) exists [reserved] and (yC) this Section 6.07(h) shall not permit a Disposition of all or substantially all of the Net Proceeds assets of such Disposition shall be applied and/or reinvested as (the Issuer and to the extent) required by Section 2.11(b)(ii)its Restricted Subsidiaries;
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof; provided that factoring or similar arrangements shall not be permitted pursuant to this clause (k);
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower Issuer and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions to the extent applicable, the consummation of Real Estate Investments in the ordinary course of business (as determined in good faith by Transactions on the Borrower)Closing Date;
(q) Disposition Dispositions of any non-core assets (i) acquired in a connection with any acquisition or other investment permitted hereunderhereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, which assets are (x) not used or useful in the ordinary course or the principal business within 90 days of the Borrower date of such acquisition, are designated in writing to the Purchaser Representative as being held for sale and not for the continued operation of the Issuer or any of its Restricted Subsidiaries or any of their respective businesses; provided that (yA) non-core assets or unnecessary to no Event of Default exists on the business or operations of date on which the Borrower definitive agreement governing the relevant Disposition is executed and its Restricted Subsidiaries or (iiB) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereundersuch Dispositions are for fair market value;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the BorrowerIssuer) for like assets; provided that, that upon the consummation of any such exchange or swap by any Loan Note Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent Purchaser Representative has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing non-exclusive licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrower Issuer or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the BorrowerIssuer, are not material to the conduct of the business of the Borrower or Issuer and its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries[reserved];
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Issuer and/or any Restricted Subsidiary; provided that such Dispositions do not exceed $6,000,000 in the aggregate;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) [reserved]; and
(bb) Dispositions involving assets having a in connection with Sale and Lease-Back Transactions; provided that, in the case of this clause (bb), the fair market value (as reasonably determined by of all property so Disposed of after the Borrower at the time of the relevant Disposition) of Closing Date shall not more than exceed the greater of $50,000,000 6,000,000 and 0.369.0% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis Period. Dispositions in any Fiscal Year, which, if not used in such Fiscal Year, shall connection with Sale and Lease-Back Transactions may be carried forward to succeeding Fiscal Years;
made solely under clause (bb) so long as the Borrower would be in compliance with of this Section 6.13(a) on a Pro Forma Basis, 6.07 and not under any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financingclause. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party6.07, such Collateral shall be sold free and clear of the Liens created by the Loan Note Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent Purchaser Representative shall be authorized to take, and shall take, any actions deemed appropriate reasonably requested by the Note Parties in order to effect the foregoing in accordance with Article 8 hereof; provided, that in the case of a Disposition made to any Note Party, the relevant transferred assets shall become part of the Collateral of the transferee Note Party (except to the extent such assets constitute Excluded Assets of such transferee Note Party). Notwithstanding the foregoing, this Section 6.07 shall not permit any IP Separation Transaction.
Appears in 2 contracts
Samples: Note Purchase Agreement (ATI Physical Therapy, Inc.), Note Purchase Agreement (ATI Physical Therapy, Inc.)
Fundamental Changes; Disposition of Assets. The Borrower Parent and each other Loan Party shall not, nor shall it permit any of its Restricted Subsidiaries Subsidiary to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a Disposition Consideration in excess of $10,000,000 in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the any Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Parent or a Borrower, (1A) the Parent or such Borrower shall be the continuing or surviving Person or a Person that continues as an amalgamated corporation or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation (including any immediate and successive mergers, consolidations or amalgamations of entities) is not the Parent or such Borrower (any such PersonPerson succeeding the Parent after giving effect to such transaction or transactions, the “Successor Parent” and any such Person succeeding a Borrower other than the Parent after giving effect to such transaction or transactions, a “Successor Borrower”), (w) any Successor Parent shall be an entity organized or existing under the law of the U.S., any state thereof, the District of Columbia or Canada or a political subdivision thereof, (x) the any Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or thereof, the District of Columbia, Canada or a political subdivision thereof or the jurisdiction of organization of any Borrower or a political subdivision thereof, (y) the any Successor Parent or Successor Borrower shall expressly assume the Loan Document Obligations of the Borrower Parent or the applicable Borrower, as applicable, in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty Guarantee and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, a Successor Parent will succeed to, and be substituted for, the Parent under this Agreement and the other Loan Documents and a Successor Borrower will succeed to, and be substituted for, the applicable Borrower under this Agreement and the other Loan Documents, Documents and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the guarantee obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply otherwise be made in compliance with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower Borrowers and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result determined by such Person in good faith) or (ii) treated as an Investment and otherwise be made in compliance with Section 6.06 (other than on reliance of a Divisionclause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower Parent determines in good faith that such liquidation or dissolution is in the best interests of the BorrowerParent, is not materially disadvantageous to the Lenders Lenders, and the Borrower Parent or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.066.06 (other than clause (j) thereof); and (iii) the conversion of the any Borrower or any Restricted Subsidiary may be converted into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty Guarantee or the Collateral, if anytaken as a whole;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventorygoods held for sale, equipment and or other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable good faith judgment of the BorrowerParent, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the BorrowerParent) or (B) otherwise economically impracticable or not commercially reasonable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or or other assets that were Cash and/or Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (wor are made in order to effectuate) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Liens, Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and Sale and Lease-Back Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such single Disposition involving transaction or a series of related transactions with respect to assets with a purchase price having Disposition Consideration in excess of the greater of $45,000,000 75,000,000 and 0.352.14% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 75% of the consideration for such Disposition Disposition, shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (wu) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are expressly subordinated in right of payment to the Loan Document Obligations or that are owed to the any Borrower or any Restricted Subsidiary) of the any Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto), or if the incurrence of such Indebtedness or other liability took place after the date of such balance sheet, that would have been shown on such balance sheet or in the notes thereto, as determined in good faith by the Parent) that are (i) assumed by the transferee of any such assets and for which the applicable Borrower and/or its applicable Restricted Subsidiary have been validly released by all relevant creditors in writingwriting or (ii) otherwise cancelled or terminated in connection with such Disposition, (xv) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (yw) future payments to be made in cash or Cash Equivalents owed to any Borrower or a Restricted Subsidiary in the form of licensing, royalty, earnout or milestone payment (or similar deferred cash payments), (x) any Securities or other obligations or assets received by the any Borrower or any Restricted Subsidiary from such transferee (including earn-outs or similar obligations) that are converted by such Person into Cash or Cash Equivalents, or by their terms are required to be satisfied for 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 (zy) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (zy) and clause (B)(1) of the proviso to Section 6.08 that is at that time outstanding, not in excess of the greater of $105,000,000 375,000,000 and 0.7510.7% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period, in each case, case shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures Joint Ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof, or as part of any bankruptcy or similar proceeding;
(l) Dispositions and/or terminations of of, or constituting, leases, subleases, licenses, sublicenses or cross-licenses or sublicenses (including the provision of software under any open source license), the Dispositions or terminations of which (i) the Disposition or termination of which will do not materially interfere with the business of the Borrower Borrowers and its their Restricted Subsidiaries or Subsidiaries, (ii) which relate to closed facilities or the discontinuation of any product lineProduct Line or (iii) are made in the ordinary course of business;
(m) (i) any termination of any lease lease, sublease, license or sub-license in the ordinary course of businessbusiness (and any related Disposition of improvements made to leased real property resulting therefrom), (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, expropriation, forced disposition, casualty, eminent domain domain, expropriation or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold or licensed interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)[reserved];
(q) Disposition Dispositions of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets and sales of Real Estate Assets, in each case acquired in any acquisition or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or other Investment permitted hereunder, including such Dispositions (iix) made in connection with order to obtain the approval of any applicable antitrust anti-trust authority or otherwise necessary or advisable in the good faith determination of the Borrower Parent to consummate any acquisition or other Investment permitted hereunderhereunder or (y) which, within 90 days of the date of such acquisition or Investment, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of any Borrower or any of their Restricted Subsidiaries or any of their respective businesses;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange or swap is made for fair value (as reasonably determined by the BorrowerParent in good faith) for like assetsproperty or assets or property, assets or services of greater value or usefulness to the business of the Borrowers and their Restricted Subsidiaries as a whole, as determined in good faith by the Parent; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets property received do does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets property or assets so exchanged or swapped;
(s) [reserved]Dispositions of assets that do not constitute Collateral having a fair market value of not more than, in any Fiscal Year, the greater of $150,000,000 and 4.3% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, which amounts if not used in any Fiscal Year may be carried forward to subsequent Fiscal Years (until so applied);
(i) licensing, sublicensing licensing and cross-licensing (including sub-licensing) arrangements involving any technology, intellectual property or other IP Rights of the any Borrower or any Restricted Subsidiary in the ordinary course of business and business, (ii) Dispositions, abandonments, cancellations or lapses of intellectual property of other IP Rights, or including issuances or registrationsregistrations thereof, or applications for issuances or registrationsregistrations thereof, in the ordinary course of IP Rights, business or which, in the reasonable business judgment good faith determination of the BorrowerParent, are not material necessary to the conduct of the business of the any Borrower or its their Restricted Subsidiaries, Subsidiaries or are obsolete or no longer economical to maintain in light of its usetheir use and (iii) Dispositions of any technology, intellectual property or other IP Rights of the Parent or any Restricted Subsidiary involving their customers in the ordinary course of business, in each case that do not constitute Exclusive Licenses;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants, any Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order or other directive of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, amalgamation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic provided that if such Restricted Subsidiary is a Loan Party it must satisfy the Collateral and Guarantee Requirement in another such other jurisdiction in to the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdictionextent otherwise required hereunder);
(z) Dispositions constituting any part of a Permitted Reorganization;
(aa) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aabb) other Dispositions involving assets having with a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) Disposition Consideration of not more than than, in the aggregate, the greater of $50,000,000 100,000,000 and 0.362.85% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal YearsPeriod;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) Dispositions contemplated on the Closing Date and described on Schedule 6.07 hereto;
(dd) [reserved];
(ee) any issuance, sale or Disposition of Securitization Assets Capital Stock to directors, officers, managers or employees for purposes of satisfying requirements with respect to directors’ qualifying shares and shares issued to foreign nationals, in each case as required by applicable Requirements of Law;
(other than to a Securitization Subsidiaryff) any netting arrangement of accounts receivable between or related assets among the any Borrower and their Restricted Subsidiaries or among Restricted Subsidiaries of any Borrower made in the ordinary course of business; and (gg) Dispositions in connection with any Qualified Securitization FinancingPermitted Bond Hedge Transaction, any Permitted Warrant Transaction or any Packaged Right. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall automatically be sold free and clear of the Liens created by the Loan Documents, Documents (which Liens shall be automatically released upon the consummation of such Disposition; it being understood ) and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions reasonably requested by any Borrower or otherwise deemed appropriate in order to effect the foregoing in accordance with Article 8 hereofforegoing.
Appears in 2 contracts
Samples: Credit Agreement (Bausch Health Companies Inc.), Restatement Agreement (Valeant Pharmaceuticals International, Inc.)
Fundamental Changes; Disposition of Assets. The Borrower Borrowers shall not, nor shall it the Borrowers permit any of its their Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, amalgamation or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value in excess of $2,500,000, in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the a Borrower or any other another Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the a Borrower, (1A) the a Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the a Borrower (any such Person, the “Successor Borrower”), (w) the Successor Borrower shall provide the documentation and other information reasonably requested in writing by the Lenders that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, and including, with respect to any Successor Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower, in each case at least three Business Days prior to the effectiveness of such merger, consolidation or amalgamation (or such shorter period as Agent shall otherwise agree), (x)
(1) in the case of a US Borrower, the Successor Borrower shall be an entity organized or existing under the law laws of the U.S., any state thereof or the District of Columbia, and (2) in the case of a UK Borrower, the Successor Borrower shall be an entity organized or existing under the laws of England and Wales, (y) the Successor Borrower shall expressly assume the Obligations of the applicable Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (xw) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the such Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower any Guarantor or sale of assets by any Subsidiary Guarantor, either (1x) the Borrower or a Subsidiary such Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.066.6;
(b) Dispositions (including of Capital Stock) among the Borrower Borrowers and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by any Loan Party to a Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.6 (other than in reliance on clause (i) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower Holdings reasonably determines in good faith that such liquidation or liquidation, dissolution is in the best interests of the BorrowerHoldings, is not materially disadvantageous to the Lenders and the Borrower Holdings or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 6.6 (other than in reliance on clause (ji) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 6.7 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.066.6 (other than in reliance on clause (i) thereof); and (iii) the conversion of the a Borrower or any Restricted Subsidiary into another form of entity, entity so long as such conversion does not adversely affect the value of the Loan Guaranty (as defined in the US Guaranty and Security Agreement) or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions in the ordinary course of business of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the BorrowerHoldings, is (Ai) no longer used or useful in its business (or in the business of any Restricted Subsidiary of the BorrowerSubsidiary) or (Bii) otherwise economically impracticable to maintain;
(f) Dispositions of Cash cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 6.6 (other than Section 6.06(j)6.6(i), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a6.4(a) (other than Section 6.04(a)(ix6.4(a)(vii));
(h) Dispositions (other than sales or other Dispositions of Accounts in connection with securitization or factoring arrangements) for fair market valuevalue (as determined in good faith by the Borrowers); provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 10,000,000 and 0.3512.5% of Consolidated Total Assets as of the last day of EBITDA for the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 75% of the consideration for such Disposition shall consist of Cash cash or Cash Equivalents (provided that for purposes of the 75% Cash cash consideration requirement, (wx) 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 Holdings or any Restricted Subsidiary) of the Borrower or Holdings and any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets and for which the Borrower Holdings 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 assets acquired in connection with such Disposition, (y) any Securities securities received by the Borrower Holdings or any Restricted Subsidiary from such transferee that are converted by such Person into Cash cash or Cash Equivalents (to the extent of the Cash cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, outstanding not in excess of the greater of $105,000,000 20,000,000 and 0.7525.0% of Consolidated Total Assets as of the last day of EBITDA for the most recently ended Test Period, in each case, Period shall be deemed to be Cashcash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a)exists; provided, (f) or (g) exists and (y) the Net Proceeds further, that, solely with respect to Dispositions of any Rolling Stock Collateral, such Disposition is in the ordinary course of business and shall be applied and/or reinvested as (on commercially reasonable prices and to the extent) required by Section 2.11(b)(ii)terms in a bona fide arm’s-length transaction;
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures or any subsidiary that is not a Wholly-Owned Subsidiary to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof (including any discounting or forgiveness thereof) in the ordinary course of business;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will do not materially interfere with the business of the Borrower Borrowers and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product lineSubsidiaries;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business);
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed[reserved];
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code IRC (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets Property so exchanged or swapped;
(sq) [reserved]other Dispositions; provided that the aggregate for fair market value (as determined in good faith by Holdings) of all assets subject to such Dispositions since the Closing Date shall not exceed $10,000,000;
(i) licensing, sublicensing and crossnon-exclusive licensing arrangements involving any IP Rights of the Borrower Borrowers or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, in the ordinary course of business, which, in the reasonable business judgment good faith determination of the relevant Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer used, useful or economical to maintain in light of its use;
(us) terminations or unwinds of Derivative Transactions;
(vt) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(yu) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(zv) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter[reserved];
(aaw) Dispositions involving assets having a fair market value of letters of credit and/or bank guarantees (as reasonably determined by and/or the Borrower at rights thereunder) to banks or other financial institutions in the time ordinary course of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis business in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;exchange for cash and/or Cash Equivalents; and
(bbx) Sale and Lease-Back Transactions with respect to Real Property so long as (i) the Borrower Payment Conditions are satisfied, (ii) no Event of Default shall have occurred and be continuing or would be result from such Sale and Lease-Back Transactions, (iii) such Disposition is made for fair market value, and (iv) in compliance with Section 6.13(a) the case of any Sale and Lease-Back Transaction permitted hereunder, such Loan Party or Restricted Subsidiary shall use commercially reasonable efforts to cause, if requested by the Agent, each purchaser or transferee to enter into a Collateral Access Agreement on terms and conditions reasonably satisfactory to the Agent (it being understood that the Agent may establish Reserves in its Permitted Discretion for any such property or locations for which a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization SubsidiaryCollateral Access Agreement is not obtained); provided, that if, as of any date of determination, sales or Dispositions by the Loan Parties of Collateral and/or UK Collateral during the period of time from the first day of the month in which such Disposition shall be for no less than date of determination occurs until such date of determination, either individually or in the aggregate, involve $5,000,000 or more of assets included in the Borrowing Base (based on the fair market value of the assets so Disposed, determined in good faith by the Administrative Borrower) (the “Disposition Threshold Amount”), then Borrowers shall have, prior to consummation of the sale or Disposition that causes the assets included in the Borrowing Base that are sold or Disposed of during such property at period to exceed the time Disposition Threshold Amount, delivered to Agent an updated Borrowing Base Certificate that reflects the removal of the applicable assets from the Borrowing Base; and provided further that the Net Proceeds of such Disposition as determined sales or Dispositions by the Borrower in good faith; and
(ccLoan Parties of Collateral and/or UK Collateral, as applicable, shall be applied pursuant to Section 2.4(e)(ii) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financinghereof. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 6.7 to any Person other than a Loan Party, such Collateral shall automatically be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent and/or UK Security Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing foregoing. Notwithstanding anything herein to the contrary, no Borrower shall itself enter into any division or allocation of assets to a series of limited liability companies under any applicable law. Notwithstanding anything to the contrary set forth herein, in accordance the case of any Disposition of intellectual property material and necessary for the operation of the assets of the Loan Parties and their Subsidiaries which constitute Collateral, such intellectual property shall be subject to a non-exclusive royalty-free worldwide license in favor of the Agent solely for the purpose of the Agent’s exercise of rights and remedies under this Agreement and the other Loan Documents in connection with Article 8 hereofthe Collateral; provided that no Loan Party involved in any of the above-referenced Dispositions shall become an Excluded Subsidiary (other than an Immaterial Subsidiary) as a result of such Disposition. Notwithstanding anything to the contrary set forth herein, no Loan Party shall, and no Loan Party shall suffer or permit any of its Subsidiaries to, directly or indirectly, sell, assign, lease, convey, or otherwise Dispose of (whether in one or a series of related transactions) any intellectual property which is material to the conduct of the business of the Loan Parties and their Subsidiaries and which would remain material to the conduct of the business of the Loan Parties and their Subsidiaries after giving effect to any such disposition (except, in each case, as permitted pursuant to clause (r) above) to any Person that is not a Loan Party.
Appears in 2 contracts
Samples: Credit Agreement (Concrete Pumping Holdings, Inc.), Credit Agreement (Concrete Pumping Holdings, Inc.)
Fundamental Changes; Disposition of Assets. The Top Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value in excess of $10,000,000, in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Top Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Top Borrower, (1A) the Top Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Top Borrower (any such Person, the “Successor Top Borrower”), (x) the Successor Top Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Top Borrower shall expressly assume the Obligations of the Top Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Top Borrower will succeed to, and be substituted for, the Top Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into any Borrower (other than the Borrower Top Borrower) or any Subsidiary Guarantor, either (1x) the a Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the relevant Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Top Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Top Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Top Borrower, is not materially disadvantageous to the Lenders and the Top Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Top Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Top Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Top Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and Liens, (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and (z) Sale-Leaseback Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 20,000,000 and 0.3512% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 Top Borrower or any Restricted Subsidiary) of the Top Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets and for which the Top 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 assets acquired in connection with such Disposition, (y) any Securities received by the Top 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) and Section 6.08(B)(1) that is at that time outstanding, not in excess of the greater of $105,000,000 50,000,000 and 0.7529% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or of termination of which will not materially interfere with the business of the Top Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions to the extent constituting a Disposition, the consummation of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)Transaction;
(q) Disposition Dispositions of any non-core assets (i) acquired in a connection with any acquisition or other investment permitted hereunderhereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, which assets are (x) not used or useful in the ordinary course or the principal business within 90 days of the date of such acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of the Top Borrower and or any of its Restricted Subsidiaries or (y) non-core assets or unnecessary to any of their respective businesses; provided that no Event of Default exists on the business or operations of date on which the Borrower and its Restricted Subsidiaries or (ii) made in connection with definitive agreement governing the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Top Borrower) for like assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved]Dispositions of assets that do not constitute Collateral for fair market value;
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Top Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the Top Borrower, are not material to the conduct of the business of the Top Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Top Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) other Dispositions involving assets having a fair market value (as reasonably determined by the Top Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis 15,000,000 in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;; and
(bb) so long as Dispositions contemplated on the Borrower would be in compliance with Section 6.13(a) Closing Date and described on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingSchedule 6.07 hereto. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Cotiviti Holdings, Inc.), First Lien Credit Agreement (Cotiviti Holdings, Inc.)
Fundamental Changes; Disposition of Assets. The Borrower Borrowers and the Subsidiary Guarantors shall not, nor shall it they permit any of its Restricted their Subsidiaries to, enter into any transaction of merger, consolidation merger or amalgamation, consummate a Division as the Dividing Personconsolidation, or liquidate, wind up or dissolve themselves itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor), transfer or otherwise make dispose of (including pursuant to any Disposition sale and leaseback transaction), in one transaction or a series of transactions, all or any part of its business, assets or property of any assetskind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, except:
(a) (i) any Restricted Subsidiary may be merged, merged or consolidated or amalgamated with or into the either Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such a merger, amalgamation or consolidation or amalgamation with or into the either Borrower, (1) the such Borrower shall be the continuing or surviving Person or (2) if the Person formed by or surviving any such mergeror, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger transaction involving both Borrowers, the Borrower Agent shall be the continuing or Divisionsurviving Person), (ii) in the case of such a merger, amalgamation or consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person Person, (iii) in the case of such a merger, amalgamation or consolidation with or into any Debtor, a Debtor shall be the continuing or surviving Person shall expressly assume person and (iv) such merger, consolidation or amalgamation does not adversely affect the obligations Liens in favor of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent securing the Obligations (including the priority thereof);
(b) sales or other dispositions among the Borrowers and their Subsidiaries (2) the relevant transaction upon voluntary liquidation or otherwise); provided that any such sales or dispositions by a Loan Party to a Person that is not a Loan Party shall be treated as an Investment and shall comply otherwise made in compliance with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division)6.07;
(i) the liquidation or dissolution of any Restricted Subsidiary (so long as, in the case of the liquidation or dissolution of the Subsidiary Borrower, the Borrower Agent receives any assets of such entity) or change in form of entity of any Subsidiary if the Borrower Agent determines in good faith that such liquidation liquidation, dissolution or dissolution change in form is in the best interests of the BorrowerBorrowers, is not materially disadvantageous to the Lenders and the Borrower Borrowers or any Restricted Subsidiary receives any assets of the relevant such dissolved or liquidated Restricted Subsidiary; provided that in the case of any such dissolution or liquidation or dissolution of any Loan Party that results shall result in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment Party and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition a sale or disposition otherwise permitted under this Section 6.07 6.08 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06); and (iii) provided, further, in the conversion case of a change in the Borrower or any Restricted Subsidiary into another form of entityentity of any Subsidiary that is a Loan Party, so long the security interests in the Collateral shall remain in full force and effect and perfected to the same extent as prior to such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if anychange;
(d) (x) Dispositions sales or leases of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions disposals of surplus, obsolete, used or worn out immaterial property or other immaterial property that, in the reasonable judgment of the BorrowerBorrower Agent, is (A) no longer useful in the operation its business (or business; provided that in the business case of any Restricted intellectual property, such intellectual property is not registered in or applied to be registered, other than such registered or applied to be registered immaterial intellectual property that is no longer used or useful to the Borrowers or the Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintainGuarantors;
(f) Dispositions sales of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when for the relevant original Investment was madefair market value thereof;
(g) Dispositionsdispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 6.07 (other than Section 6.06(j6.07(d) or (j)), (x) and Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))Liens;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii)[Reserved];
(i) dispositions of immaterial property in the ordinary course of business and consistent with past practice to the extent that (i) the relevant such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition such disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements[Reserved];
(k) Dispositions sales, discounting or forgiveness of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any an open source license), in each case in the ordinary course of business and which (i) the Disposition or termination of which will do not materially interfere with the business of the Borrower Borrowers and its Restricted their Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product linestores;
(m) (i) any termination of any lease leases in the ordinary course of businessbusiness pursuant to an Approved Bankruptcy Court Order, (ii) any the expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of immaterial contractual rights or the settlementsettlement or release of immaterial contractual rights, release or surrender of contractual rights or litigation claims (including in tort) each case in the ordinary course of business;
(n) Dispositions transfers of property subject to foreclosure, casualty, eminent domain or condemnation casualty proceedings (including in lieu thereof or any similar proceedingthereof);
(o) Dispositions or consignments licenses for the conduct of equipment, inventory or other assets (including leasehold interests licensed departments within the Loan Parties’ stores in real property) with respect to facilities that are temporarily not in use, held for sale or closedthe ordinary course of business;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)[Reserved];
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder[Reserved];
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped[Reserved];
(s) [reserved]sales and dispositions for fair market value in an aggregate amount since the Closing Date of up to $1,000,000; provided that any Net Proceeds of a sale or disposition of Collateral that does not constitute Prepetition ABL Priority Collateral pursuant to this clause (s) shall be held in a Term Proceeds Account pending application by the Borrower Agent and/or any of its Subsidiaries in accordance with this Agreement;
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any IP Rights technology or other intellectual property of the either Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses dispositions of IP Rights, or issuances or registrations, or applications for issuances or registrations, property in the ordinary course of IP Rights, business consisting of the abandonment of intellectual property rights which, in the reasonable business judgment good faith determination of the BorrowerBorrower Agent, are not material to the conduct of the business of the Borrower Borrowers and the Subsidiaries and are not registered or its Restricted Subsidiariesapplied to be registered, other than such registered or are applied to be registered immaterial intellectual property that is no longer economical used or useful to maintain in light of its usethe Borrowers or the Subsidiary Guarantors;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries[Reserved];
(w) [reservedReserved];; and
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. sale or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be disposition for no less than the fair market value of such property at all or substantially all of the time assets or Capital Stock of such Disposition as determined Granmark, S.A. de C.V. and Print Appeal, Inc.; provided that any Net Proceeds received by Holdings or any Subsidiary in respect of any sale or dispositions pursuant to this clause (x) in excess of $5,000,000 shall be required to be applied to the Borrower prepayment of outstanding Term Loans in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection accordance with any Qualified Securitization FinancingSection 2.11(b)(ii). To the extent that any Collateral is Disposed disposed of as expressly permitted by this Section 6.07 6.08 to any Person other than a Loan Party, such Collateral shall automatically be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, take any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereofforegoing.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Party City Holdco Inc.), Restructuring Support Agreement (Party City Holdco Inc.)
Fundamental Changes; Disposition of Assets. The No Borrower shall notshall, nor shall it any Borrower permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition Disposition, in a single transaction or in a series of any assetsrelated transactions, except:
(a) (i) any Restricted Subsidiary (other than a Borrower) may be merged, consolidated or amalgamated with or into the any Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person ifSubsidiary; provided, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a); provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the a Borrower, (1A) the such Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving or continuing following any such merger, consolidation or amalgamation is not the a Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S.US, any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the such Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the such Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the any Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided, that any such Disposition made by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary (other than a Borrower) if the any Borrower determines in good faith that such liquidation or dissolution is in the best interests of the such Borrower, is not materially disadvantageous to the Lenders and the any Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided provided, that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (aSection 6.07(a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the any Borrower or any Restricted Subsidiary into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or the Collateral, if any, taken as a whole;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property equipment or assets, inventory, equipment and other immaterial assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the BorrowerBorrower Representative, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the or any Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Liens, Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and Sale and Lease-Back Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided provided, that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 US$11,000,000 and 0.3510% of Consolidated Total Assets as Adjusted EBITDA of the last day of Borrowers and their Restricted Subsidiaries for the most recently ended Test Period calculated on a Pro Forma BasisPeriod, as applicable, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided provided, that for purposes of the 75% Cash consideration requirement, (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 any Borrower or any Restricted Subsidiary) of the any Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets and for which the Borrower Borrowers and/or its their 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 assets acquired in connection with such Disposition, (y) any Securities received by the any 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) and clause (B)(1) of the proviso in Section 6.08 that is at that time outstanding, not in excess of the greater of $105,000,000 US$11,000,000 and 0.7510% of Consolidated Total Assets Adjusted EBITDA of the Borrowers and their Restricted Subsidiaries as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists shall exist and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) thereof and any factoring or similar arrangement), in connection with the collection or compromise thereofthereof or in connection with any Permitted Receivables Financing;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), which (i) the Disposition or termination of which will do not materially interfere with the business of the Borrower Borrowers and its their Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in connection with the ordinary course of business (as determined in good faith by the Borrower)Transactions;
(q) Disposition Dispositions of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations and sales of the Borrower and its Restricted Subsidiaries or (ii) made Real Estate Assets, in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable each case, acquired in the good faith determination of the Borrower to consummate any acquisition permitted hereunderhereunder which, within 90 days of the date of such acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of any Borrower or any Restricted Subsidiary or any of their respective businesses; provided, that no Event of Default exists on the date on which the definitive agreement governing the relevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange or swap is made for fair value (as reasonably determined by the BorrowerBorrower Representative) for like property or assets; provided thatprovided, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets property received do does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved]Dispositions of assets that do not constitute Collateral for fair market value;
(i) licensing, sublicensing non-exclusive licensing and cross-licensing arrangements involving any technology, intellectual property or other IP Rights of the any Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the BorrowerBorrower Representative, are not material to the conduct of the business of the Borrower Borrowers or its their Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, any Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement Requirements of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic US Subsidiary in another jurisdiction in the U.S. US and/or (ii) any Foreign Non-US Subsidiary in the U.S. US, Canada or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions contemplated on the Closing Date and described on Schedule 6.07 hereto; and
(bb) other Dispositions involving assets having a fair market value (as reasonably determined by the Borrower Representative at the time of the relevant Disposition) in the aggregate in any Fiscal Year of not more than the greater of $50,000,000 US$11,000,000 and 0.3610% of Consolidated Total Assets as Adjusted EBITDA of the last day of Borrowers and their Restricted Subsidiaries for the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization SubsidiaryPeriod; provided, that any amount of Dispositions permitted by this clause (bb) that is not used in any given Fiscal Year will added to the amount permitted by this clause (bb) in the subsequent Fiscal Year and, for the avoidance of doubt, such Disposition shall be for no less than amount may continue to accrue in each subsequent Fiscal Year to the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financingextent not utilized. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate reasonably requested by the Borrower Representative in order to effect the foregoing in accordance with Article 8 hereof8.
Appears in 2 contracts
Samples: Incremental Amendment to Credit Agreement (Knowlton Development Corp Inc), Incremental Amendment to Credit Agreement (Knowlton Development Parent, Inc.)
Fundamental Changes; Disposition of Assets. The Lead Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Lead Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the theany US Borrower, (1A) the thesuch US Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the thesuch US Borrower (any such Person, the “US Successor Borrower”), (x) the US Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the US Successor Borrower shall expressly assume the Obligations of the thesuch US Borrower in a manner reasonably satisfactory to the Administrative Agent and concurrently with the consummation of such merger, consolidation or amalgamation, 100% of the Capital Stock of the US Successor Borrower shall be pledged to the Administrative Agent for the benefit of the Secured Parties and (z)
(1) except as the Administrative Agent may otherwise agree, each applicable Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan DocumentsDocuments and (2) upon its reasonable request, the Administrative Agent shall have received customary legal opinions; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the US Successor Borrower will succeed to, and be substituted for, thesuch US Borrower under this Agreement and the other Loan Documents, (ii) in the case of any such merger, consolidation or amalgamation with or into the Canadian Borrower, (A) the Canadian Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Canadian Borrower (any such Person, a “Canadian Successor Borrower”), (x) the Canadian Successor Borrower shall be a Canadian Person, (y) the Canadian Successor Borrower shall expressly assume the Obligations of the Canadian Borrower in a manner reasonably satisfactory to the Administrative Agent and (z)
(1) except as the Administrative Agent may otherwise agree, each applicable Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and -188- delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents and (2) upon its reasonable request, the Administrative Agent shall have received customary legal opinions; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Canadian Successor Borrower will succeed to, and be substituted for, the Canadian Borrower under this Agreement and the other Loan Documents, and (Biii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the guarantee obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Lead Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for Fair Market Value with at least 75% of the consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (including ii) treated as a result an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof); provided, further, that the Lead Borrower shall deliver an updated Borrowing Base Certificate at any time the amount of a Division)assets Disposed of pursuant to this clause (b) reduces the Borrowing Bases by more than $7,500,000;
(i) the liquidation or dissolution of any Restricted Subsidiary (other than the Canadian Borrower) if the Lead Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Lead Borrower, is not materially disadvantageous to the Lenders and the Lead Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Lead Borrower or any Restricted Subsidiary may be converted into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Lead Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Lead Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Liens, Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and Sale and Lease-back Transactions permitted by Section 6.08;
(h) Dispositions for fair market valueFair Market Value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 65,000,000 and 0.3540.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisAdjusted EBITDA, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided Equivalents; provided, that for purposes of the 75% Cash consideration requirement, (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 Lead Borrower or any Restricted Subsidiary) of the Lead Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets and for which the Lead 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 assets acquired in connection with such Disposition, (y) any Securities received by the Lead 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) and Section 6.08(B)(1)(z) that is at that time outstanding, not in excess of the greater of $105,000,000 50,000,000 and 0.7530.0% of Consolidated Total Assets as of the last day of the most recently ended Test PeriodAdjusted EBITDA, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists shall exist and (y) an updated Borrowing Base Certificate shall be delivered to the Net Proceeds of Administrative Agent to the extent such Disposition shall causes the Borrowing Base to be applied and/or reinvested as (and to the extent) required reduced by Section 2.11(b)(ii)greater than $7,500,000;
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) and any factoring or similar arrangement or in connection with the collection or compromise thereofof any of the foregoing;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), which (i) the Disposition or termination of which will do not materially -190- interfere with the business of the Lead Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)[reserved];
(q) Disposition Dispositions of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made acquired in connection with the approval any acquisition permitted hereunder and sales of any applicable antitrust authority or otherwise necessary or advisable Real Estate Assets acquired in the good faith determination of the Borrower to consummate any acquisition permitted hereunder; provided that no Event of Default exists on the date on which the definitive agreement governing the relevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Lead Borrower) for like property or assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets property received do does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved]Dispositions set forth on Schedule 6.07(s);
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Lead Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the Lead Borrower, are not material to the conduct of the business of the Lead Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of -191- management, managers or consultants of any Parent Company, the Lead Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority agency of the U.S. Federal government, any state, authority or other regulatory body or any applicable Requirement of Law;
(y) any merger, amalgamation, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S., (ii) any Canadian Loan Party in the U.S. and/or (iiiii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;; and
(aa) Dispositions involving assets having a fair market value (as reasonably determined by Fair Market Value in the Borrower at aggregate since the time of the relevant Disposition) Closing Date of not more than the greater of $50,000,000 60,000,000 and 0.3635.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingAdjusted EBITDA. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof8.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition Disposition, in a single transaction or in a series of any assetsrelated transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Surviving Person shall expressly assume the guarantee obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary may be converted into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Liens, Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and Sale-Leaseback Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 15,000,000 and 0.351.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, as applicable, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 50,000,000 and 0.753.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists shall exist and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereofthereof and any factoring or similar arrangement) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), which (i) the Disposition or termination of which will do not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in connection with the ordinary course of business (as determined in good faith by the Borrower)Transactions;
(q) Disposition Dispositions of any non-core assets (i) acquired in a connection with any acquisition or other investment permitted hereunderhereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, which assets within 90 days of the date of such acquisition, are (x) designated in writing to the Administrative Agent as being held for sale and not used or useful in for the ordinary course or the principal business continued operation of the Borrower and or any of its Restricted Subsidiaries or any of their respective businesses; provided that (yi) non-core assets or unnecessary the Net Proceeds received in connection with any such Disposition shall be applied and/or reinvested as (and to the business or operations of the Borrower extent required) by Section 2.11(b)(ii) and its Restricted Subsidiaries or (ii) made in connection with no Event of Default exists on the approval of any applicable antitrust authority or otherwise necessary or advisable in date on which the good faith determination of definitive agreement governing the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like property or assets; provided that, that (i) upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets property received do does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swappedswapped and (ii) any Net Proceeds received as “cash boot” in connection with any such transaction shall be applied and/or reinvested as (and to the extent required) by Section 2.11(b)(ii);
(s) [reservedReserved];
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority agency of the U.S. Federal government, any state, authority or other regulatory body or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdictionU.S.;
(z) [Reserved];
(aa) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aabb) other Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) in the aggregate since the Closing Date of not more than the greater of $50,000,000 5,000,000 and 0.361.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faithPeriod; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingDispositions contemplated on the Closing Date and described on Schedule 6.07. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof8.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value in excess of the greater of $147,500,000 and 25% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period in a single transaction or a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; , it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1A) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or such Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2B) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division);
(c) (i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); , (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; 6.06 and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or the Collateral, if any;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property equipment or assets, inventory, equipment and other immaterial assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and Liens, (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and (z) Sale and Lease-Back Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 88,500,000 and 0.3515% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (wi) 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 in 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, (xii) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (yiii) any Securities Security received by the Borrower or any Restricted Subsidiary from such transferee that are is 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 (ziv) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (ziv) and clause (B)(1) of the proviso in Section 6.08 that is at that time outstanding, not in excess of the greater of $105,000,000 147,500,000 and 0.7525% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii)exists;
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments any restructuring transactions entered into in connection with, or in preparation for, the ordinary course of business (as determined in good faith by the Borrower)Initial Public Offering;
(q) Disposition Dispositions of any non-core assets (i) acquired in a connection with any acquisition or other investment permitted hereunderhereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, which assets within 90 days of the date of such acquisition, are (x) designated in writing to the Administrative Agent as being held for sale and not used or useful in for the ordinary course or the principal business continued operation of the Borrower and or any of its Restricted Subsidiaries or (y) non-core assets or unnecessary to any of their respective businesses; provided that no Event of Default exists on the business or operations of date on which the Borrower and its Restricted Subsidiaries or (ii) made in connection with definitive agreement governing the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped(including Related Business Assets);
(s) [reserved];
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative TransactionsTransactions and any related Disposition;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 59,000,000 and 0.3610% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to the next succeeding Fiscal Years;Year; and
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets any account receivable or notes receivable (whether now existing or arising or acquired in the future) and any assets related thereto in accordance with any factoring or similar program, including but not limited to, to a Securitization Subsidiary; providedEntity or a Receivables Purchaser under or pursuant to a Qualified Receivables Transaction. Notwithstanding anything to the contrary in this Agreement or any other Loan Document (pursuant to any transaction permitted by this Section 6.07 or otherwise), that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) shall not, and shall not permit any Disposition of Securitization Assets (other than its Restricted Subsidiaries to, Dispose of or exclusively license any Material Intellectual Property to a Securitization any Unrestricted Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold Disposed of free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate reasonably requested by the Borrower in order to effect the foregoing in accordance with Article 8 VIII hereof.
Appears in 1 contract
Samples: First Lien Credit Agreement (Shift4 Payments, Inc.)
Fundamental Changes; Disposition of Assets. The Borrower Other than as part of any Permitted Practice Subsidiary Restructuring, the Issuer shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value in excess of $1,200,000 in a single transaction or a series of related transactions and in excess of $3,000,000 in the aggregate for all such transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower Issuer or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the BorrowerIssuer or any Delaware LLC Division relating to the Issuer, (1A) the Borrower Issuer shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation or Delaware LLC Division is not the Borrower Issuer (any such Person, the “Successor BorrowerIssuer”), (x) the Successor Borrower Issuer shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower Issuer shall expressly assume the Obligations of the Borrower Issuer in a manner reasonably satisfactory to the Administrative Agent Required Purchasers and (z) except as the Administrative Agent Required Purchasers may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Note Guaranty and the other Loan Note Documents; , it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower Issuer will succeed to, and be substituted for, the Borrower Issuer under this Agreement and the other Loan Note Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower any Subsidiary Guarantor or any Delaware LLC Division relating to any Subsidiary Guarantor, either (1A) the Borrower Issuer or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or such Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent Required Purchasers or (2B) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower Issuer and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by any Note Party to any Person that is not a Note Party shall be (i) for fair market value (including as a result reasonably determined by the Issuer) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(c) (i) the liquidation liquidation, dissolution or dissolution Delaware LLC Division of any Restricted Subsidiary if the Borrower Issuer determines in good faith that such liquidation liquidation, dissolution or dissolution Delaware LLC Division is in the best interests of the BorrowerIssuer, is not materially disadvantageous to the Lenders Purchasers and the Borrower Issuer or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation liquidation, dissolution or dissolution Delaware LLC Division of any Loan Note Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Note Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation liquidation, consolidation or consolidationDelaware LLC Division, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower Issuer or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Note Guaranty or Collateral, if any;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property equipment or assets, inventory, equipment and other immaterial assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the BorrowerIssuer, is (Ai) no longer useful in its business (or in the business of any Restricted Subsidiary of the BorrowerIssuer) or (Bii) otherwise economically impracticable to maintain;
(f) Dispositions in the ordinary course of business of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (wi) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (xii) Permitted Liens and (yiii) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash)Equivalents; provided, further, that (xA) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a)exists, (fB) or (g) exists [reserved] and (yC) this Section 6.07(h) shall not permit a Disposition of all or substantially all of the Net Proceeds assets of such Disposition shall be applied and/or reinvested as (the Issuer and to the extent) required by Section 2.11(b)(ii)its Restricted Subsidiaries;
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof; provided that factoring or similar arrangements shall not be permitted pursuant to this clause (k);
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower Issuer and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(m) (i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions to the extent applicable, the consummation of Real Estate Investments in the ordinary course of business (as determined in good faith by Transactions on the Borrower)Closing Date;
(q) Disposition Dispositions of any non-core assets (i) acquired in a connection with any acquisition or other investment permitted hereunderhereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, which assets are (x) not used or useful in the ordinary course or the principal business within 90 days of the Borrower date of such acquisition, are designated in writing to the Purchaser Representative as being held for sale and not for the continued operation of the Issuer or any of its Restricted Subsidiaries or any of their respective businesses; provided that (yA) non-core assets or unnecessary to no Event of Default exists on the business or operations of date on which the Borrower definitive agreement governing the relevant Disposition is executed and its Restricted Subsidiaries or (iiB) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereundersuch Dispositions are for fair market value;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the BorrowerIssuer) for like assets; provided that, that upon the consummation of any such exchange or swap by any Loan Note Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent Purchaser Representative has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing non-exclusive licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrower Issuer or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the BorrowerIssuer, are not material to the conduct of the business of the Borrower or Issuer and its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries[reserved];
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Issuer and/or any Restricted Subsidiary; provided that such Dispositions do not exceed $6,000,000 in the aggregate;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) [reserved]; and
(bb) Dispositions involving assets having a in connection with Sale and Lease-Back Transactions; provided that, in the case of this clause (bb), the fair market value (as reasonably determined by of all property so Disposed of after the Borrower at the time of the relevant Disposition) of Closing Date shall not more than exceed the greater of $50,000,000 6,000,000 and 0.369.0% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis Period. Dispositions in any Fiscal Year, which, if not used in such Fiscal Year, shall connection with Sale and Lease-Back Transactions may be carried forward to succeeding Fiscal Years;
made solely under clause (bb) so long as the Borrower would be in compliance with of this Section 6.13(a) on a Pro Forma Basis, 6.07 and not under any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financingclause. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party6.07, such Collateral shall be sold free and clear of the Liens created by the Loan Note Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent Purchaser Representative shall be authorized to take, and shall take, any actions deemed appropriate reasonably requested by the Note Parties in order to effect the foregoing in accordance with Article 8 hereof; provided, that in the case of a Disposition made to any Note Party, the relevant transferred assets shall become part of the Collateral of the transferee Note Party (except to the extent such assets constitute Excluded Assets of such transferee Note Party). Notwithstanding the foregoing, this Section 6.07 shall not permit any IP Separation Transaction.
Appears in 1 contract
Samples: Note Purchase Agreement (ATI Physical Therapy, Inc.)
Fundamental Changes; Disposition of Assets. The Borrower Borrowers shall not, nor shall it permit any of its their Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition Disposition, in a single transaction or in a series of any assetsrelated transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Lead Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Lead Borrower, (1A) the Lead Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Lead Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Lead Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Lead Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or involving any Subsidiary Guarantor, either (1x) the Borrower or a (i) such Subsidiary Guarantor shall be the continuing or surviving Person or (ii) the continuing or surviving Person shall (A) expressly assume the guarantee obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent and (B) be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.066.06 and (iii) in the case of any such merger, consolidation or amalgamation by a Restricted Subsidiary that is not a Loan Party into any other Restricted Subsidiary that is a Loan Party, any related intercompany Indebtedness assumed by such Restricted Subsidiary that is a Loan Party shall be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent;
(b) Dispositions (including of Capital Stock) among the Lead Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be for fair market value (as reasonably determined by such Person) with at least 75% of the consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or treated as an Investment and otherwise made in compliance with Section 6.06 (including other than in reliance on clause (j) thereof); provided, further, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party as a result of a Division)such Disposition must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent;
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith provided that such liquidation or dissolution is in the best interests of the Borrowerdissolution, as applicable, would not reasonably be expected to have a Material Adverse Effect and is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted SubsidiaryLenders; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the any Borrower or any Restricted Subsidiary may be converted into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsoleteinventory, damaged or worn out property or current assets, inventory, or equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrowerincluding on an intercompany basis), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) and (y) the leasing or subleasing of real property in the ordinary course of businessbusiness and (z) Dispositions of (A) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) and (B) receivables and related assets pursuant to any Permitted Receivables Financing;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the any Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the any Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 35,000,000 and 0.354% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, as applicable, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 Borrowers or any Restricted Subsidiary) of the Borrower Borrowers or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets and for which the Borrower Borrowers and/or its their 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 assets acquired in connection with such Disposition, (y) any Securities received by the Borrower Borrowers 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 20,000,000 and 0.752% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists shall exist and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are reasonably promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereofthereof and any factoring, early pay or similar supply chain financing arrangement) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license)) in the ordinary course of business, (i) the Disposition or termination of which will do not materially interfere with the business of the Lead Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product lineSubsidiaries;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)[Reserved];
(q) Disposition Dispositions of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary acquired in connection with any acquisition permitted hereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, within 90 days of the date of such acquisition, are designated in writing to the business or operations Administrative Agent as being held for sale and not for the continued operation of the Borrower and its Borrowers or any of their Restricted Subsidiaries or any of their respective businesses; provided that (i) the Net Proceeds received in connection with any such Disposition shall be applied and/or reinvested as (and to the extent required) by Section 2.11(b)(ii) and (ii) made in connection with no Event of Default exists on the approval of any applicable antitrust authority or otherwise necessary or advisable in date on which the good faith determination of definitive agreement governing the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange or swap is made for fair value (as reasonably determined by the applicable Borrower) for like property or assets; provided that, that (i) upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets property received do does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swappedswapped and (ii) any Net Proceeds received as “cash boot” in connection with any such transaction shall be applied and/or reinvested as (and to the extent required) by Section 2.11(b)(ii);
(s) [reserved](i) any AAG Integration Transaction and (ii) any Permitted Reorganization;
(t) (i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrower Borrowers or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the applicable Borrower, are not material to the conduct of the business of the applicable Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrowers and/or any Restricted Subsidiary and/or dispositions of property formerly leased by the Lead Borrower or its Restricted Subsidiaries and acquired by the Lead Borrower and sold as an alternative to terminating the lease on such property;
(x) Dispositions made to comply with any order of any Governmental Authority agency of the U.S. Federal government, any state, authority or other regulatory body or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdictionU.S.;
(z) the transfer or Disposition of property pursuant to sale and leaseback transactions; provided that (A) at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing or would result therefrom, (B) the aggregate fair market value of all property disposed of in reliance on this clause shall not exceed the greater of $150,000,000 and 16% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period and (C) such transaction is for fair market value and for consideration at least 75% of which is Cash or Cash Equivalents;
(aa) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aabb) other Dispositions involving assets having a fair market value (as reasonably determined by the Lead Borrower at the time of the relevant Disposition) in the aggregate since the Closing Date of not more than the greater of $50,000,000 and 0.366% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faithPeriod; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingDispositions contemplated on the Closing Date and described on Schedule 6.07. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof8.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Other than the Acquisition and the other Transactions, the Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value in excess of $5,000,000 in a single transaction or a series of related transactions and in excess of $10,000,000 in the aggregate for all such transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; , it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1A) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or such Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2B) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division);
(c) (i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); , (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; 6.06 and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or the Collateral, if any;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property equipment or assets, inventory, equipment and other immaterial assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and Liens, (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and (z) Sale and Lease-Back Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 15,000,000 and 0.3515% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (wi) 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 in 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, (xii) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (yiii) any Securities Security received by the Borrower or any Restricted Subsidiary from such transferee that are is 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 (ziv) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (ziv) and clause (B)(1) of the proviso in Section 6.08 that is at that time outstanding, not in excess of the greater of $105,000,000 25,000,000 and 0.7525% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (xA) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (yB) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions to the extent otherwise restricted by this Section 6.07, the consummation of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)Transactions;
(q) Disposition Dispositions of any non-core assets (i) acquired in a connection with any acquisition or other investment permitted hereunderhereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, which assets within 90 days of the date of such acquisition, are (x) designated in writing to the Administrative Agent as being held for sale and not used or useful in for the ordinary course or the principal business continued operation of the Borrower and or any of its Restricted Subsidiaries or (y) non-core assets or unnecessary to any of their respective businesses; provided that no Event of Default exists on the business or operations of date on which the Borrower and its Restricted Subsidiaries or (ii) made in connection with definitive agreement governing the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assetsassets (including Related Business Assets); provided that, that upon the consummation of any such exchange or swap of any Real Estate Asset by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets Asset so exchanged or swapped;
(s) [reserved]Dispositions of assets that do not constitute Collateral for fair market value; provided that the Net Proceeds of any such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;Transactions and any related Disposition; 141
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 10,000,000 and 0.3610% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to the next succeeding Fiscal Years;Year; and
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower any account receivable in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection accordance with any Qualified Securitization Financingfactoring or similar program. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold Disposed of free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate reasonably requested by the Borrower in order to effect the foregoing in accordance with Article 8 hereof.
Appears in 1 contract
Samples: First Lien Credit Agreement (Shift4 Payments, Inc.)
Fundamental Changes; Disposition of Assets. The Borrower shall will not, nor shall will it permit any of its Restricted Subsidiaries Subsidiary to, (x) enter into any transaction of merger, consolidation merger or amalgamation, consummate a Division as the Dividing Personconsolidation, or liquidate, wind wind-up or dissolve themselves itself (or suffer any liquidation or dissolution), (y) convey, sell, lease, exchange, transfer or otherwise make dispose of, in one transaction or a series of transactions, all or any Disposition part of its business, assets or property of any assetskind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired or leased or (z) sell, assign, or otherwise dispose of any Capital Stock of any Subsidiary, except:
(a) (i) : any Restricted Subsidiary may be merged, consolidated or amalgamated with or into of the Borrower may merge or any other Restricted Subsidiary and consolidate with the Borrower (ii) any Restricted Subsidiary may consummate including a Division as the Dividing Person if, immediately upon the consummation of the Divisionmerger, the assets purpose of which is to reorganize the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in Borrower into a Disposition permitted by Section 6.07 (other than Section 6.07(anew jurisdiction); provided that the Borrower may merge or consolidate with another Person (A) in the case of any such including a merger, consolidation or amalgamation with or the purpose of which is to reorganize the Borrower into the Borrower, a new jurisdiction); provided further that:
(1i) the Borrower shall be is the continuing surviving person or surviving Person or (2) if the Person formed by or surviving any such merger, consolidation or amalgamation conversion (if other than the Borrower) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is not the Borrower (any such Persona corporation, the “Successor Borrower”), (x) the Successor Borrower shall be an entity partnership or limited liability company organized or existing under the law laws of the U.S., any state thereof in the United States of America (the Borrower or such Person, as the District of Columbiacase may be, being herein called the “Successor Company”);
(yii) the Successor Borrower shall Company (if other than the Borrower) expressly assume assumes all the Obligations of the Borrower under this Agreement and any other Loan Document to which the Borrower is a party pursuant to documents or instruments in a manner form reasonably satisfactory to the Administrative Agent and Agent;
(ziii) except as if the Administrative Agent may otherwise agreeSuccessor Company is not the Borrower, each Guarantor, unless it is the other party to such merger, consolidation merger or amalgamationconsolidation, shall (A) have executed and delivered a reaffirmation agreement with respect confirmed, pursuant to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner documents reasonably satisfactory to the Administrative Agent Agent, that its Guarantee shall apply to the Successor Company’s Obligations under the Loan Documents and (B) shall have by a supplement or amendment (2or such other document reasonably satisfactory to the Collateral Agent) to the relevant transaction Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall be treated as an Investment and shall comply with Section 6.06apply to the Successor Company’s Obligations under the Loan Documents;
(biv) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that immediately after giving pro forma effect to such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Division, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executedtransaction, no Event of Default under Section 7.01(a), (f) or (g) exists shall have occurred and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactionscontinuing;
(v) Dispositions of Capital Stock ofthe Successor Company (if not the Borrower) shall have delivered to the Administrative Agent an officer’s certificate stating that such consolidation, merger or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
transfer and such amendments (wif any) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or this Agreement and any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by Loan Document to which the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on is a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faithparty; and
(ccvi) any Disposition of Securitization Assets (other than if the Successor Company is not the Borrower, prior to a Securitization Subsidiary) such merger or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Partyconsolidation, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized have received all documentation and other information with respect to takethe Successor Company required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, and shall take, including the PATRIOT Act to the extent requested by any actions deemed appropriate in order to effect Lender from the foregoing in accordance with Article 8 hereof.Borrower at least ten
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower Borrowers shall not, nor shall it permit any of its their Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of assets having a fair market value in excess of, with respect to any assetssingle transaction or series of related transactions, the greater of $15,000,000 and 5% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, except:
: (a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Lead Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Lead Borrower, (1A) the Lead Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Lead Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Lead Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Lead Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or involving any Subsidiary Guarantor, either (1x) the Borrower or a (i) such Subsidiary Guarantor shall be the continuing or surviving Person or (ii) the continuing or surviving Person shall (A) expressly assume the guarantee obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent and (B) be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
6.06 and (iii) in the case of any such merger, consolidation or amalgamation by a Restricted Subsidiary that is not a Loan Party into any other Restricted Subsidiary that is a Loan Party, any related intercompany Indebtedness assumed by such Restricted Subsidiary that is a Loan Party shall be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent; (b) Dispositions (including of Capital Stock) among the Lead Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of such Disposition by any Loan Party that results in a distribution of assets to any Restricted Subsidiary Person that is not a Loan Party, such distribution Party shall be (i) for fair market value (as reasonably determined by such Person) with at least 75% of the consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and shall comply otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Division, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds not a Loan Party as a result of such Disposition shall must be applied and/or reinvested as (and expressly subordinated to the extent) required by Section 2.11(b)(ii);
(i) Obligations of such Loan Party on terms that are reasonably acceptable to the extent that Administrative Agent; (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source licensec), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower shall will not, nor shall will it permit any of its Restricted Subsidiaries Subsidiary to, (i) enter into any transaction of merger, consolidation merger or amalgamation, consummate a Division as the Dividing Personconsolidation, or liquidate, wind wind-up or dissolve themselves itself (or suffer any liquidation or dissolution), (ii) convey, sell, lease, exchange, transfer or otherwise make dispose of, in one transaction or a series of transactions, all or any Disposition part of its business, assets or property of any assetskind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired or leased or (iii) sell, assign, pledge or otherwise dispose of any Capital Stock of any of its Subsidiaries, except:
(a) (i) any Restricted Parent or Subsidiary may be merged, consolidated merge or amalgamated consolidate with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate including a Division as the Dividing Person if, immediately upon the consummation of the Divisionmerger, the assets purpose of which is to reorganize the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in Borrower into a Disposition permitted by Section 6.07 (other than Section 6.07(anew jurisdiction); provided that (A) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1x) the Borrower shall be the continuing or surviving Person Person, (y) such merger or (2) if the Person formed by or surviving any such merger, consolidation or amalgamation is does not result in the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall ceasing to be an entity organized or existing under the law Laws of the U.S.United States, any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent Columbia and (z) except as in the Administrative Agent may otherwise agreecase of a merger or consolidation of any Parent of the Borrower with and into the Borrower, each Guarantor, unless it (1) such Parent shall not be an obligor in respect of any Indebtedness that is the other party not permitted to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, Indebtedness of the Borrower under this Agreement and (2) such Parent shall have no direct Subsidiaries at the other Loan Documents, and (B) in the case time of any such merger or Division, consolidation or amalgamation with or into other than the Borrower or any Subsidiary Guarantor, either (1) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division)Borrower;
(i) any Subsidiary that is not a Credit Party may merge or consolidate with or into any other Subsidiary that is not a Credit Party, (ii) any Subsidiary may merge or consolidate with or into any other Subsidiary that is a Credit Party, (iii) any merger the liquidation sole purpose of which is to reincorporate or dissolution of reorganize a Credit Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such liquidation or dissolution action is in the best interests of the Borrower, Borrower and its Subsidiaries and is not materially disadvantageous to the Lenders Lenders, provided, in the case of clauses (ii) through (iv), that (A) no Change of Control shall result therefrom and (B) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Subsidiary that is a Guarantor) shall be a Credit Party;
(c) any Subsidiary may dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted other Subsidiary; provided that in the case a Guarantor Subsidiary may not dispose of any liquidation all or dissolution substantially all of any Loan Party that results in a distribution of its assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be Non-Credit Party unless treated as an Investment and shall comply with that is permitted by Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Division, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;6.6.
(d) conveyances, sales, leases, exchanges, transfers or other dispositions that do not constitute Asset Sales; 148797484_8155722702_14
(xe) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other Asset Sales; provided that (i) the consideration received for such assets is in an amount at least equal to the ordinary course of business fair market value thereof (as determined in good faith by the management of the Borrower), and property or assets (ii) no longer used or useful less than 75% of which will paid in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) cash, and (yiii) the leasing or subleasing Net Cash Proceeds thereof are applied as required by Section 2.14(a); provided further, that for the purposes of real property in the ordinary course of business;
clause (e) Dispositions of surplusii), obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 Personthe Borrower’s most recent balance sheet or statement of financial position (provided hereunder or in the notes footnotes thereto)) of the Borrower that are assumed by the transferee of any such assets with respect to the applicable Asset Sale and for which the Borrower and/or its applicable Restricted Subsidiary and all of the Subsidiaries shall have been validly released by all relevant applicable 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 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 writing and (zB) any Designated Non-Cash Consideration received in respect of such Disposition Asset Sale having an aggregate fair market valuevalue as reasonably determined by the Borrower in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (zB) that is at that time outstanding, not in excess of the greater of (x) $105,000,000 4,000,000 and 0.75(y) an amount equal to 4% of TTM Consolidated Total Assets as Adjusted EBITDA of the last day Borrower on a Pro Forma Basis at the time of the most recently ended Test Periodreceipt 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 each casevalue, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), cash;
(f) the Borrower and the Subsidiaries may lease (as lessee) or license (as licensee) real or personal property, in each case in the ordinary course of business, so long as any such lease or license does not create a Finance Lease except to the extent permitted by Section 6.1(d);
(g) exists any transaction (other than an Asset Sale) in connection with a Permitted Acquisition or other Investment permitted by Section 6.6; provided that if the merging or consolidating Subsidiary is a Guarantor Subsidiary, the surviving entity is or becomes a Guarantor Subsidiary;
(h) sales, leases, assignments, conveyances, transfers, licenses, exchanges or dispositions of other assets for aggregate consideration of less than the greater of $10,000,000 and (y) 10% of TTM Consolidated Adjusted EBITDA on a Pro Forma Basis as of the applicable date of determination in the aggregate during any Fiscal Year so long as the Net Cash Proceeds of such Disposition shall be therefrom are applied and/or reinvested as (and pursuant to the extent) required by Section 2.11(b)(ii2.14(a);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price dispositions of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures Joint Ventures to the extent required by, or made pursuant to, customary buy/sell arrangements agreements between the joint venture Joint Venture parties set forth in joint venture arrangements and similar binding arrangementsagreements between such parties;
(j) dispositions in connection with a Permitted Reorganization or Permitted IPO Reorganization; and
(k) Dispositions any transaction in connection with each of notes receivable or accounts receivable in the ordinary course of business Oyster Mergers, the Oyster Reorganization and the Oyster Debt Assumption.; and
(including l) any discount and/or forgiveness thereof) or transaction in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including CartiHeal Equity Purchase and the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereofCartiHeal Reorganization.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Lead Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition having a fair market value in excess of any assets$20,000,000, in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Lead Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the US Borrower, (1A) the US Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the US Borrower (any such Person, the “US Successor Borrower”), (x) the US Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the US Successor Borrower shall expressly assume the Obligations of the US Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each applicable Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the US Successor Borrower will succeed to, and be substituted for, the US Borrower under this Agreement and the other Loan Documents, (ii) in the case of any such merger, consolidation or amalgamation with or into a Canadian Borrower, (A) the applicable Canadian Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the applicable Canadian Borrower (any such Person, a “Canadian Successor Borrower”), (x) the Canadian Successor Borrower shall be an entity organized or existing under the laws of the Canada or any province or territory thereof, (y) the Canadian Successor Borrower shall expressly assume the Obligations of the applicable Canadian Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each applicable Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Canadian Successor Borrower will succeed to, and be substituted for, the applicable Canadian Borrower under this Agreement and the other Loan Documents, (iii) in the case of any such merger, consolidation or amalgamation with or into a European Borrower, (A) the applicable European Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the applicable European Borrower (any such Person, a “European Successor Borrower”), (x) the European Successor Borrower shall be an entity organized or existing under the laws of the Netherlands or England and Wales, as applicable, (y) the European Successor Borrower shall expressly assume the Obligations of the European Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each applicable Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents (and such other additional Loan Documents as may be required to preserve the validity, ranking or perfection of European Collateral and evidence that no new burdening periods shall apply with respect to such European Collateral); it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the European Successor Borrower will succeed to, and be substituted for, the applicable European Borrower under this Agreement and the other Loan Documents, and (Biv) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Surviving Person shall expressly assume the guarantee obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Lead Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Lead Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Lead Borrower, is not materially disadvantageous to the Lenders and the Lead Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Lead Borrower or any Restricted Subsidiary may be converted into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Lead Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Lead Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Liens, Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and Sale and Lease-back Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 25,000,000 and 0.351.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, as applicable, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in the notes thereto)) that are assumed by the transferee of any such assets and for which the Lead 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) and Section 6.08 that is at that time outstanding, not in excess of the greater of $105,000,000 50,000,000 and 0.751.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists shall exist and (y) the Net Proceeds of such Disposition an updated Borrowing Base Certificate shall be applied and/or reinvested as (and delivered to the extent) Administrative Agent as required by Section 2.11(b)(ii5.01(e);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereofthereof and any factoring or similar arrangement) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), which (i) the Disposition or termination of which will do not materially interfere with the business of the Lead Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in connection with the ordinary course of business (as determined in good faith by the Borrower)Transactions;
(q) Disposition Dispositions of any non-core assets (i) acquired in a connection with any acquisition or other investment permitted hereunderhereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, which assets are (x) not used or useful in the ordinary course or the principal business within 90 days of the date of such acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of the Lead Borrower and or any of its Restricted Subsidiaries or (y) non-core assets or unnecessary to any of their respective businesses; provided that no Event of Default exists on the business or operations of date on which the Borrower and its Restricted Subsidiaries or (ii) made in connection with definitive agreement governing the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like property or assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets property received do does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reservedReserved];
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Lead Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the Lead Borrower, are not material to the conduct of the business of the Lead Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Lead Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority agency of the U.S. Federal government, any state, authority or other regulatory body or any applicable Requirement Requirements of Law;
(y) any merger, amalgamation, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or or (ii) any Foreign Subsidiary Canadian Loan Party or European Loan Party in the U.S. or any other jurisdictionU.S.;
(z) Dispositions or conveyances that arise out of or relate to any (i) Specified Lease Transaction or (ii) NMTC Transaction;
(aa) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;; and
(aabb) other Dispositions involving assets having a fair market value (as reasonably determined by the Lead Borrower at the time of the relevant Disposition) in the aggregate since the Closing Date of not more than the greater of $50,000,000 40,000,000 and 0.361.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingPeriod. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof8.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower Other than as part of any Permitted Practice Subsidiary Restructuring, the Issuer shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value in excess of $1,200,000 in a single transaction or a series of related transactions and in excess of $3,000,000 in the aggregate for all such transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower Issuer or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the BorrowerIssuer or any Delaware LLC Division relating to the Issuer, (1A) the Borrower Issuer shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation or Delaware LLC Division is not the Borrower Issuer (any such Person, the “Successor BorrowerIssuer”), (x) the Successor Borrower Issuer shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower Issuer shall expressly assume the Obligations of the Borrower Issuer in a manner reasonably satisfactory to the Administrative Agent Required Purchasers and (z) except as the Administrative Agent Required Purchasers may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Note Guaranty and the other Loan Note Documents; , it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower Issuer will succeed to, and be substituted for, the Borrower Issuer under this Agreement and the other Loan Note Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower any Subsidiary Guarantor or any Delaware LLC Division relating to any Subsidiary Guarantor, either (1A) the Borrower Issuer or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or such Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent Required Purchasers or (2B) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower Issuer and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by any Note Party to any Person that is not a Note Party shall be (i) for fair market value (including as a result reasonably determined by the Issuer) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation liquidation, dissolution or dissolution Delaware LLC Division of any Restricted Subsidiary if the Borrower Issuer determines in good faith that such liquidation liquidation, dissolution or dissolution Delaware LLC Division is in the best interests of the BorrowerIssuer, is not materially disadvantageous to the Lenders Purchasers and the Borrower Issuer or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation liquidation, dissolution or dissolution Delaware LLC Division of any Loan Note Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Note Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation liquidation, consolidation or consolidationDelaware LLC Division, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower Issuer or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Note Guaranty or Collateral, if any;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property equipment or assets, inventory, equipment and other immaterial assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the BorrowerIssuer, is (Ai) no longer useful in its business (or in the business of any Restricted Subsidiary of the BorrowerIssuer) or (Bii) otherwise economically impracticable to maintain;
(f) Dispositions in the ordinary course of business of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (wi) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (xii) Permitted Liens and (yiii) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash)Equivalents; provided, further, that (xA) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a)exists, (fB) or (g) exists [reserved] and (yC) this Section 6.07(h) shall not permit a Disposition of all or substantially all of the Net Proceeds assets of such Disposition shall be applied and/or reinvested as (the Issuer and to the extent) required by Section 2.11(b)(ii)its Restricted Subsidiaries;
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof; provided that factoring or similar arrangements shall not be permitted pursuant to this clause (k); it being understood and agreed for the avoidance of doubt that this proviso shall not limit the sale of any individual receivable or episode of care at a discount in the ordinary course of business to a third party service provider to the Issuer and its Subsidiaries that is, in the good faith determination of the Issuer, (a) substantially equivalent to (but not in addition to a contractual adjustment that is applied to receivables of the Issuer or its applicable Restricted Subsidiary in the ordinary course of business and/or (b) intended to replace or reduce collection costs applicable to the relevant receivable;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower Issuer and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions to the extent applicable, the consummation of Real Estate Investments in the ordinary course of business (as determined in good faith by Transactions on the Borrower)Closing Date;
(q) Disposition Dispositions of any non-core assets (i) acquired in a connection with any acquisition or other investment permitted hereunderhereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, which assets are (x) not used or useful in the ordinary course or the principal business within 90 days of the Borrower date of such acquisition, are designated in writing to the Purchaser Representative as being held for sale and not for the continued operation of the Issuer or any of its Restricted Subsidiaries or any of their respective businesses; provided that (yA) non-core assets or unnecessary to no Event of Default exists on the business or operations of date on which the Borrower definitive agreement governing the relevant Disposition is executed and its Restricted Subsidiaries or (iiB) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereundersuch Dispositions are for fair market value;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the BorrowerIssuer) for like assets; provided that, that upon the consummation of any such exchange or swap by any Loan Note Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent Purchaser Representative has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved]reserved]The Issuer may merge with and into any Person so long as (i) such Person is not an operating business and has no Indebtedness for borrowed money and (ii) the Issuer shall be the continuing or surviving Person;
(i) licensing, sublicensing non-exclusive licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrower Issuer or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the BorrowerIssuer, are not material to the conduct of the business of the Borrower or Issuer and its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries[reserved];
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Issuer and/or any Restricted Subsidiary; provided that such Dispositions do not exceed $6,000,000 in the aggregate;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) [reserved]; and
(bb) Dispositions involving assets having a in connection with Sale and Lease-Back Transactions; provided that, in the case of this clause (bb), the fair market value (as reasonably determined by of all property so Disposed of after the Borrower at the time of the relevant Disposition) of Closing Date shall not more than exceed the greater of $50,000,000 6,000,000 and 0.369.0% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis Period. Dispositions in any Fiscal Year, which, if not used in such Fiscal Year, shall connection with Sale and Lease-Back Transactions may be carried forward to succeeding Fiscal Years;
made solely under clause (bb) so long as the Borrower would be in compliance with of this Section 6.13(a) on a Pro Forma Basis, 6.07 and not under any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financingclause. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party6.07, such Collateral shall be sold free and clear of the Liens created by the Loan Note Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent Purchaser Representative shall be authorized to take, and shall take, any actions deemed appropriate reasonably requested by the Note Parties in order to effect the foregoing in accordance with Article 8 hereof; provided, that in the case of a Disposition made to any Note Party, the relevant transferred assets shall become part of the Collateral of the transferee Note Party (except to the extent such assets constitute Excluded Assets of such transferee Note Party). Notwithstanding the foregoing, this Section 6.07 shall not permit any IP Separation Transaction.
Appears in 1 contract
Samples: Note Purchase Agreement (ATI Physical Therapy, Inc.)
Fundamental Changes; Disposition of Assets. The Other than the Acquisition and the other Transactions, the Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value in excess of $5,000,000 in a single transaction or a series of related transactions and in excess of $10,000,000 in the aggregate for all such transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; , it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1A) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or such Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2B) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division);
(c) (i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such Table of Contents distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); , (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; 6.06 and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or the Collateral, if any;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property equipment or assets, inventory, equipment and other immaterial assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and Liens, (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and (z) Sale and Lease-Back Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 15,000,000 and 0.3515% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (wi) 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 in 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, (xii) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (yiii) any Securities Security received by the Borrower or any Restricted Subsidiary from such transferee that are is 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 (ziv) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (ziv) and clause (B)(1) of the proviso in Section 6.08 that is at that time outstanding, not in excess of the greater of $105,000,000 25,000,000 and 0.7525% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (xA) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (yB) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;; Table of Contents
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions to the extent otherwise restricted by this Section 6.07, the consummation of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)Transactions;
(q) Disposition Dispositions of any non-core assets (i) acquired in a connection with any acquisition or other investment permitted hereunderhereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, which assets within 90 days of the date of such acquisition, are (x) designated in writing to the Administrative Agent as being held for sale and not used or useful in for the ordinary course or the principal business continued operation of the Borrower and or any of its Restricted Subsidiaries or (y) non-core assets or unnecessary to any of their respective businesses; provided that no Event of Default exists on the business or operations of date on which the Borrower and its Restricted Subsidiaries or (ii) made in connection with definitive agreement governing the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assetsassets (including Related Business Assets); provided that, that upon the consummation of any such exchange or swap of any Real Estate Asset by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets Asset so exchanged or swapped;
(s) [reserved]Dispositions of assets that do not constitute Collateral for fair market value; provided that the Net Proceeds of any such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative TransactionsTransactions and any related Disposition;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
; Table of Contents (w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles Real Estate Assets and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Qualified Securitization Financing. To Parent Company, the extent that Borrower and/or any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.Restricted Subsidiary;
Appears in 1 contract
Samples: First Lien Credit Agreement (Shift4 Payments, Inc.)
Fundamental Changes; Disposition of Assets. The Borrower Borrowers shall not, nor shall it the Borrowers permit any of its their Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, amalgamation or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value in excess of $2,500,000, in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the a Borrower or any other another Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the a Borrower, (1A) the a Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the a Borrower (any such Person, the “Successor Borrower”), (w) the Successor Borrower shall provide the documentation and other information reasonably requested in writing by the Lenders that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, and including, with respect to any Successor Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower, in each case at least three Business Days prior to the effectiveness of such merger, consolidation or amalgamation (or such shorter period as Agent shall otherwise agree), (x)
(1) in the case of a US Borrower, the Successor Borrower shall be an entity organized or existing under the law laws of the U.S., any state thereof or the District of Columbia, and (2) in the case of a UK Borrower, the Successor Borrower shall be an entity organized or existing under the laws of England and Wales, (y) the Successor Borrower shall expressly assume the Obligations of the applicable Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (xw) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the such Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower any Guarantor or sale of assets by any Subsidiary Guarantor, either (1x) the Borrower or a Subsidiary such Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06Section 6.6;
(b) Dispositions (including of Capital Stock) among the Borrower Borrowers and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by any Loan Party to a Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.6 (other than in reliance on clause (i) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower Holdings reasonably determines in good faith that such liquidation or liquidation, dissolution is in the best interests of the BorrowerHoldings, is not materially disadvantageous to the Lenders and the Borrower Holdings or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 Section 6.6 (other than in reliance on clause (j(i) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 Section 6.7 (other than clause (a(a), clause (b(b) or this clause (c(c)) or (B) any Investment permitted under Section 6.06Section 6.6 (other than in reliance on clause (i) thereof); and (iii) the conversion of the a Borrower or any Restricted Subsidiary into another form of entity, entity so long as such conversion does not adversely affect the value of the Loan Guaranty (as defined in the US Guaranty and Security Agreement) or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions in the ordinary course of business of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the BorrowerHoldings, is (Ai) no longer used or useful in its business (or in the business of any Restricted Subsidiary of the BorrowerSubsidiary) or (Bii) otherwise economically impracticable to maintain;
(f) Dispositions of Cash cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 Section 6.6 (other than Section 6.06(j)Section 6.6(i), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(aSection 6.4(a) (other than Section 6.04(a)(ixSection 6.4(a)(vii));
(h) Dispositions (other than sales or other Dispositions of Accounts in connection with securitization or factoring arrangements) for fair market valuevalue (as determined in good faith by the Borrowers); provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 10,000,000 and 0.3512.5% of Consolidated Total Assets as of the last day of EBITDA for the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 75% of the consideration for such Disposition shall consist of Cash cash or Cash Equivalents (provided that for purposes of the 75% Cash cash consideration requirement, (wx) 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 Holdings or any Restricted Subsidiary) of the Borrower or Holdings and any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets and for which the Borrower Holdings 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 assets acquired in connection with such Disposition, (y) any Securities securities received by the Borrower Holdings or any Restricted Subsidiary from such transferee that are converted by such Person into Cash cash or Cash Equivalents (to the extent of the Cash cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, outstanding not in excess of the greater of $105,000,000 20,000,000 and 0.7525.0% of Consolidated Total Assets as of the last day of EBITDA for the most recently ended Test Period, in each case, Period shall be deemed to be Cashcash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a)exists; provided, (f) or (g) exists and (y) the Net Proceeds further, that, solely with respect to Dispositions of any Rolling Stock Collateral, such Disposition is in the ordinary course of business and shall be applied and/or reinvested as (on commercially reasonable prices and to the extent) required by Section 2.11(b)(ii)terms in a bona fide arm’s-length transaction;
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures or any subsidiary that is not a Wholly-Owned Subsidiary to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof (including any discounting or forgiveness thereof) in the ordinary course of business;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will do not materially interfere with the business of the Borrower Borrowers and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product lineSubsidiaries;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business);
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed[reserved];
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code IRC (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets Property so exchanged or swapped;
(sq) [reserved]other Dispositions; provided that the aggregate for fair market value (as determined in good faith by Holdings) of all assets subject to such Dispositions since the Closing Date shall not exceed $10,000,000;
(i) licensing, sublicensing and crossnon-exclusive licensing arrangements involving any IP Rights of the Borrower Borrowers or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, in the ordinary course of business, which, in the reasonable business judgment good faith determination of the relevant Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer used, useful or economical to maintain in light of its use;
(us) terminations or unwinds of Derivative Transactions;
(vt) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(yu) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(zv) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter[reserved];
(aaw) Dispositions involving assets having a fair market value of letters of credit and/or bank guarantees (as reasonably determined by and/or the Borrower at rights thereunder) to banks or other financial institutions in the time ordinary course of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis business in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;exchange for cash and/or Cash Equivalents; and
(bbx) Sale and Lease-Back Transactions with respect to Real Property so long as (i) the Borrower Payment Conditions are satisfied, (ii) no Event of Default shall have occurred and be continuing or would be result from such Sale and Lease-Back Transactions, (iii) such Disposition is made for fair market value, and (iv) in compliance with Section 6.13(a) the case of any Sale and Lease-Back Transaction permitted hereunder, such Loan Party or Restricted Subsidiary shall use commercially reasonable efforts to cause, if requested by the Agent, each purchaser or transferee to enter into a Collateral Access Agreement on terms and conditions reasonably satisfactory to the Agent (it being understood that the Agent may establish Reserves in its Permitted Discretion for any such property or locations for which a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization SubsidiaryCollateral Access Agreement is not obtained); provided, that if, as of any date of determination, sales or Dispositions by the Loan Parties of Collateral and/or UK Collateral during the period of time from the first day of the month in which such Disposition shall be for no less than date of determination occurs until such date of determination, either individually or in the aggregate, involve $5,000,000 or more of assets included in the Borrowing Base (based on the fair market value of the assets so Disposed, determined in good faith by the Administrative Borrower) (the “Disposition Threshold Amount”), then Borrowers shall have, prior to consummation of the sale or Disposition that causes the assets included in the Borrowing Base that are sold or Disposed of during such property at period to exceed the time Disposition Threshold Amount, delivered to Agent an updated Borrowing Base Certificate that reflects the removal of the applicable assets from the Borrowing Base; and provided further that the Net Proceeds of such Disposition as determined sales or Dispositions by the Borrower in good faith; and
(ccLoan Parties of Collateral and/or UK Collateral, as applicable, shall be applied pursuant to Section 2.4(e)(ii) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financinghereof. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 6.7 to any Person other than a Loan Party, such Collateral shall automatically be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent and/or UK Security Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing foregoing. Notwithstanding anything herein to the contrary, no Borrower shall itself enter into any division or allocation of assets to a series of limited liability companies under any applicable law. Notwithstanding anything to the contrary set forth herein, in accordance the case of any Disposition of intellectual property material and necessary for the operation of the assets of the Loan Parties and their Subsidiaries which constitute Collateral, such intellectual property shall be subject to a non-exclusive royalty-free worldwide license in favor of the Agent solely for the purpose of the Agent’s exercise of rights and remedies under this Agreement and the other Loan Documents in connection with Article 8 hereofthe Collateral; provided that no Loan Party involved in any of the above-referenced Dispositions shall become an Excluded Subsidiary (other than an Immaterial Subsidiary) as a result of such Disposition. Notwithstanding anything to the contrary set forth herein, no Loan Party shall, and no Loan Party shall suffer or permit any of its Subsidiaries to, directly or indirectly, sell, assign, lease, convey, or otherwise Dispose of (whether in one or a series of related transactions) any intellectual property which is material to the conduct of the business of the Loan Parties and their Subsidiaries and which would remain material to the conduct of the business of the Loan Parties and their Subsidiaries after giving effect to any such disposition (except, in each case, as permitted pursuant to clause (r) above) to any Person that is not a Loan Party.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower shall will not, nor shall will it permit any of its Restricted Subsidiaries Subsidiary to, (i) enter into any transaction of merger, consolidation merger or amalgamation, consummate a Division as the Dividing Personconsolidation, or liquidate, wind wind-up or dissolve themselves itself (or suffer any liquidation or dissolution), (ii) convey, sell, lease, exchange, transfer or otherwise make dispose of, in one transaction or a series of transactions, all or any Disposition part of its business, assets or property of any assetskind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired or leased or (iii) sell, assign, pledge or otherwise dispose of any Capital Stock of any of its Subsidiaries, except:
(a) (i) any Restricted Parent or Subsidiary may be merged, consolidated merge or amalgamated consolidate with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate including a Division as the Dividing Person if, immediately upon the consummation of the Divisionmerger, the assets purpose of which is to reorganize the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in Borrower into a Disposition permitted by Section 6.07 (other than Section 6.07(anew jurisdiction); provided that (A) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1x) the Borrower shall be the continuing or surviving Person Person, (y) such merger or (2) if the Person formed by or surviving any such merger, consolidation or amalgamation is does not result in the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall ceasing to be an entity organized or existing under the law Laws of the U.S.United States, any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent Columbia and (z) except as in the Administrative Agent may otherwise agreecase of a merger or consolidation of any Parent of the Borrower with and into the Borrower, each Guarantor, unless it (1) such Parent shall not be an obligor in respect of any Indebtedness that is the other party not permitted to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, Indebtedness of the Borrower under this Agreement and (2) such Parent shall have no direct Subsidiaries at the other Loan Documents, and (B) in the case time of any such merger or Division, consolidation or amalgamation with or into other than the Borrower or any Subsidiary Guarantor, either (1) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division)Borrower;
(i) any Subsidiary that is not a Credit Party may merge or consolidate with or into any other Subsidiary that is not a Credit Party, (ii) any Subsidiary may merge or consolidate with or into any other Subsidiary that is a Credit Party, (iii) any merger the liquidation sole purpose of which is to reincorporate or dissolution of reorganize a Credit Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such liquidation or dissolution action is in the best interests of the Borrower, Borrower and its Subsidiaries and is not materially disadvantageous to the Lenders Lenders, provided, in the case of clauses (ii) through (iv), that (A) no Change of Control shall result therefrom and (B) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Subsidiary that is a Guarantor) shall be a Credit Party;
(c) any Subsidiary may dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted other Subsidiary; provided that in the case a Guarantor Subsidiary may not dispose of any liquidation all or dissolution substantially all of any Loan Party that results in a distribution of its assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be Non-Credit Party unless treated as an Investment and shall comply with that is permitted by Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Division, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;6.6.
(d) conveyances, sales, leases, exchanges, transfers or other dispositions that do not constitute Asset Sales;
(xe) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other Asset Sales; provided that (i) the consideration received for such assets is in an amount at least equal to the ordinary course of business fair market value thereof (as determined in good faith by the management of the Borrower), and property or assets (ii) no longer used or useful less than 75% of which will paid in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) cash, and (yiii) the leasing or subleasing Net Cash Proceeds thereof are applied as required by Section 2.14(a); provided further, that for the purposes of real property in the ordinary course of business;
clause (e) Dispositions of surplusii), obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 Personthe Borrower’s most recent balance sheet or statement of financial position (provided hereunder or in the notes footnotes thereto)) of the Borrower that are assumed by the transferee of any such assets with respect to the applicable Asset Sale and for which the Borrower and/or its applicable Restricted Subsidiary and all of the Subsidiaries shall have been validly released by all relevant applicable 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 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 writing and (zB) any Designated Non-Cash Consideration received in respect of such Disposition Asset Sale having an aggregate fair market valuevalue as reasonably determined by the Borrower in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (zB) that is at that time outstanding, not in excess of the greater of (x) $105,000,000 3,000,000 and 0.75(y) an amount equal to 4% of TTM Consolidated Total Assets as Adjusted EBITDA of the last day Borrower on a Pro Forma Basis at the time of the most recently ended Test Periodreceipt 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 each casevalue, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), cash;
(f) the Borrower and the Subsidiaries may lease (as lessee) or license (as licensee) real or personal property, in each case in the ordinary course of business, so long as any such lease or license does not create a Finance Lease except to the extent permitted by Section 6.1(d);
(g) exists any transaction (other than an Asset Sale) in connection with a Permitted Acquisition or other Investment permitted by Section 6.6; provided that if the merging or consolidating Subsidiary is a Guarantor Subsidiary, the surviving entity is or becomes a Guarantor Subsidiary;
(h) sales, leases, assignments, conveyances, transfers, licenses, exchanges or dispositions of other assets for aggregate consideration of less than the greater of $8,000,000 and (y) 10% of TTM Consolidated Adjusted EBITDA on a Pro Forma Basis as of the applicable date of determination in the aggregate during any Fiscal Year so long as the Net Cash Proceeds of such Disposition shall be therefrom are applied and/or reinvested as (and pursuant to the extent) required by Section 2.11(b)(ii2.14(a);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price dispositions of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures Joint Ventures to the extent required by, or made pursuant to, customary buy/sell arrangements agreements between the joint venture Joint Venture parties set forth in joint venture arrangements and similar binding arrangements;agreements between such parties; and
(kj) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or dispositions in connection with a Permitted Reorganization or Permitted IPO Reorganization. Notwithstanding anything to the collection or compromise thereof;
(l) Dispositions and/or terminations of leasescontrary contained in this Section 6.8, subleases, licenses or sublicenses (including it is understood and agreed among the provision of software under any open source license), parties to this Agreement that (i) the Disposition Borrower or termination of which will not materially interfere with the business of the Borrower any Subsidiary may effect a Permitted Reorganization or Permitted IPO Reorganization and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and may change its Restricted Subsidiaries corporate identity or type of organization (y) non-core assets or unnecessary e.g., convert from a limited liability company to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdictiona corporation), of assets so long as such change does not result in the Borrower ceasing to be organized under the Laws of the United States, any such exchange state thereof or swap is made for fair value (as reasonably determined by the Borrower) for like assetsDistrict of Columbia; provided that, upon the consummation of any such exchange or swap by any Loan Party, with respect to the extent the assets received do not constitute an Excluded Assetclause (ii), the Administrative Borrower will notify the Collateral Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereofSection 6.1 of the Pledge and Security Agreement.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The No Borrower shall notshall, nor shall it permit any of its Restricted Subsidiaries or any other Loan Parties to, enter into any transaction of merger, consolidation merger or amalgamation, consummate a Division as the Dividing Personconsolidation, or liquidate, wind up or dissolve themselves itself (or suffer any liquidation or dissolution), or otherwise make any Disposition having a fair market value in excess of any assets$1,700,000, in a single transaction or in a related series of transactions, except:
(a) (i) any Restricted Subsidiary Each Borrower may be merged, consolidated or amalgamated with or into the Borrower any Person, or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person ifconvey, immediately upon the consummation sell, transfer or otherwise dispose of the Divisionall or substantially all of its business, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect property to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)another Person; provided that (A) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1) the Borrower shall be the continuing or surviving Person or (2B) if (u) the Person formed by or surviving any such merger, consolidation or amalgamation is not the (if other than such Borrower) or to which such conveyance, sale, lease or sublease, transfer or other disposition will have been made (such Borrower (any or such surviving Person, the “Successor BorrowerPerson”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations all of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to obligations of such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (B) in the case of any Documents to which such merger or Division, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1) the Borrower or is a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in party pursuant to a manner supplement hereto and/or thereto reasonably satisfactory to the Administrative Agent or Agent, (2v) the relevant transaction such Successor Person shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among entity organized under the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests laws of the same jurisdiction as such Borrower, is not materially disadvantageous to the Lenders and the Borrower (w) no Default or any Restricted Subsidiary receives any assets Event of the relevant dissolved Default then exists or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Partywould result therefrom, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Division, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsoleteno adverse tax consequences to the Restricted Group would result therefrom, damaged or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) and (y) the leasing or subleasing of real property security interests in the ordinary course Collateral of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, such Borrower shall remain in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens full force and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 effect and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (w) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated perfected to the Obligations or that are owed same extent as prior 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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition consolidation or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; amalgamation and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.
Appears in 1 contract
Samples: Credit Agreement (Orion S.A.)
Fundamental Changes; Disposition of Assets. The Borrower shall will not, nor shall will it permit any of its Restricted Subsidiaries Subsidiary to, (i) enter into any transaction of merger, consolidation merger or amalgamation, consummate a Division as the Dividing Personconsolidation, or liquidate, wind wind-up or dissolve themselves itself (or suffer any liquidation or dissolution), (ii) convey, sell, lease, exchange, transfer or otherwise make dispose of, in one transaction or a series of transactions, all or any Disposition part of its business, assets or property of any assetskind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired or leased or (iii) sell, assign, pledge or otherwise dispose of any Capital Stock of any of its Subsidiaries, except:
(a) (i) any Restricted Parent or Subsidiary may be merged, consolidated merge or amalgamated consolidate with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate including a Division as the Dividing Person if, immediately upon the consummation of the Divisionmerger, the assets purpose of which is to reorganize the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in Borrower into a Disposition permitted by Section 6.07 (other than Section 6.07(anew jurisdiction); provided that (A) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1x) the Borrower shall be the continuing or surviving Person Person, (y) such merger or (2) if the Person formed by or surviving any such merger, consolidation or amalgamation is does not result in the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall ceasing to be an entity organized or existing under the law Laws of the U.S.United States, any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent Columbia and (z) except as in the Administrative Agent may otherwise agreecase of a merger or consolidation of any Parent of the Borrower with and into the Borrower, each Guarantor, unless it (1) such Parent shall not be an obligor in respect of any Indebtedness that is the other party not permitted to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, Indebtedness of the Borrower under this Agreement and (2) such Parent shall have no direct Subsidiaries at the other Loan Documents, and (B) in the case time of any such merger or Division, consolidation or amalgamation with or into other than the Borrower or any Subsidiary Guarantor, either (1) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division)Borrower;
(i) any Subsidiary that is not a Credit Party may merge or consolidate with or into any other Subsidiary that is not a Credit Party, (ii) any Subsidiary may merge or consolidate with or into any other Subsidiary that is a Credit Party, (iii) any merger the liquidation sole purpose of which is to reincorporate or dissolution of reorganize a Credit Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such liquidation or dissolution action is in the best interests of the Borrower, Borrower and its Subsidiaries and is not materially disadvantageous to the Lenders Lenders, provided, in the case of clauses (ii) through (iv), that (A) no Change of Control shall result therefrom and (B) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Subsidiary that is a Guarantor) shall be a Credit Party;
(c) any Subsidiary may dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted other Subsidiary; provided that in the case a Guarantor Subsidiary may not dispose of any liquidation all or dissolution substantially all of any Loan Party that results in a distribution of its assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be Non-Credit Party unless treated as an Investment and shall comply with that is permitted by Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Division, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;6.6.
(d) conveyances, sales, leases, exchanges, transfers or other dispositions that do not constitute Asset Sales;
(xe) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other Asset Sales; provided that (i) the consideration received for such assets is in an amount at least equal to the ordinary course of business fair market value thereof (as determined in good faith by the management of the Borrower), and property or assets (ii) no longer used or useful less than 75% of which will paid in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) cash, and (yiii) the leasing or subleasing Net Cash Proceeds thereof are applied as required by Section 2.14(a); provided further, that for the purposes of real property in the ordinary course of business;
clause (e) Dispositions of surplusii), obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 Personthe Borrower’s most recent balance sheet or statement of financial position (provided hereunder or in the notes footnotes thereto)) of the Borrower that are assumed by the transferee of any such assets with respect to the applicable Asset Sale and for which the Borrower and/or its applicable Restricted Subsidiary and all of the Subsidiaries shall have been validly released by all relevant applicable 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 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 writing and (zB) any Designated Non-Cash Consideration received in respect of such Disposition Asset Sale having an aggregate fair market valuevalue as reasonably determined by the Borrower in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (zB) that is at that time outstanding, not in excess of the greater of (x) $105,000,000 3,000,0004,000,000 and 0.75(y) an amount equal to 4% of TTM Consolidated Total Assets as Adjusted EBITDA of the last day Borrower on a Pro Forma Basis at the time of the most recently ended Test Periodreceipt 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 each casevalue, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), cash;
(f) the Borrower and the Subsidiaries may lease (as lessee) or license (as licensee) real or personal property, in each case in the ordinary course of business, so long as any such lease or license does not create a Finance Lease except to the extent permitted by Section 6.1(d);
(g) exists any transaction (other than an Asset Sale) in connection with a Permitted Acquisition or other Investment permitted by Section 6.6; provided that if the merging or consolidating Subsidiary is a Guarantor Subsidiary, the surviving entity is or becomes a Guarantor Subsidiary;
(h) sales, leases, assignments, conveyances, transfers, licenses, exchanges or dispositions of other assets for aggregate consideration of less than the greater of $8,000,00010,000,000 and (y) 10% of TTM Consolidated Adjusted EBITDA on a Pro Forma Basis as of the applicable date of determination in the aggregate during any Fiscal Year so long as the Net Cash Proceeds of such Disposition shall be therefrom are applied and/or reinvested as (and pursuant to the extent) required by Section 2.11(b)(ii2.14(a);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price dispositions of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures Joint Ventures to the extent required by, or made pursuant to, customary buy/sell arrangements agreements between the joint venture Joint Venture parties set forth in joint venture arrangements and similar binding arrangementsagreements between such parties;
(j) dispositions in connection with a Permitted Reorganization or Permitted IPO Reorganization; and
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or transaction in connection with each of the collection or compromise thereof;
(l) Dispositions and/or terminations of leasesOyster Mergers, subleasesthe Oyster Reorganization and the Oyster Term Facility Debt Assumption. Notwithstanding anything to the contrary contained in this Section 6.8, licenses or sublicenses (including it is understood and agreed among the provision of software under any open source license), parties to this Agreement that (i) the Disposition Borrower or termination of which will not materially interfere with the business of the Borrower any Subsidiary may effect a Permitted Reorganization or Permitted IPO Reorganization and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and may change its Restricted Subsidiaries corporate identity or type of organization (y) non-core assets or unnecessary e.g., convert from a limited liability company to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdictiona corporation), of assets so long as such change does not result in the Borrower ceasing to be organized under the Laws of the United States, any such exchange state thereof or swap is made for fair value (as reasonably determined by the Borrower) for like assetsDistrict of Columbia; provided that, upon the consummation of any such exchange or swap by any Loan Party, with respect to the extent the assets received do not constitute an Excluded Assetclause (ii), the Administrative Borrower will notify the Collateral Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereofSection 6.1 of the Pledge and Security Agreement.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its the Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value (as determined in good faith by the Borrower) in excess of $13,000,000, in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall (x) expressly assume all of the Secured Obligations of the Borrower under each of the Loan Documents pursuant to documents and in a manner reasonably satisfactory to the Administrative Agent (and the Successor Borrower shall have provided customary certificates, board resolutions, customary legal opinions and other customary documents with respect to such assumption, if and to the extent reasonably requested by, and reasonably satisfactory to the Administrative Agent), and (y) such Successor Borrower shall become a “Borrower” and the “Company” hereunder and (z) except as the Administrative Agent may otherwise agree, each other Borrower and each Loan Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under this Agreement, if applicable, the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into any Loan Guarantor or the Borrower or (other than any Subsidiary Guarantorsuch transaction involving the Borrower, which shall be subject to the terms of clause (i) above), either (1x) a Loan Guarantor or the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the relevant Loan Guarantor or Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.066.04;
(b) Dispositions (including of Capital Stock) among the Borrower and/or or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as determined in good faith by such Person) with at least 75.0% of the consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition and no Event of Default shall then exist or immediately result therefrom or (ii) treated as an Investment and otherwise constitute a result Permitted Investment (other than a Permitted Investment of a Divisionthe type described in clause (j) of the definition thereof) or be made in compliance with Section 6.04(a);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any a Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 either be a Permitted Investment (other than a Permitted Investment of the type described in reliance on clause LEGAL_US_E # 159035042.9
(j) of the definition thereof) or be made in compliance with Section 6.04(a); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under constituting a Permitted Investment or made in compliance with Section 6.066.04(a); and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other equipment, raw or scrap materials or immaterial assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property property, in the ordinary course of business, or other property that, in the reasonable judgment good faith determination of the Borrower, is (A) no longer useful in its business (or in the business of the Borrower or any Restricted Subsidiary of the BorrowerSubsidiary) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or or Cash Equivalents and/or or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) (i) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Permitted Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)a Permitted Investment of the type described in clause (j) of the definition thereof), (x) Permitted Liens and (y) Liens, Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and (ii) Sale and Lease-Back Transactions permitted by Section 6.08;
(h) Dispositions for fair market valuevalue (as determined in good faith by the Borrower); provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 33,000,000 and 0.358.0% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 7575.0% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (Equivalents; provided that that, for purposes of the 7575.0% Cash consideration requirement, (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 in the notes thereto)) that are assumed by the transferee of any such assets and for which the Borrower and/or 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 assets 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 so received) within 180 days following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market valuevalue (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 33,000,000 and 0.758.0% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) no Event of Default has occurred and is continuing on the date on which the agreement governing such the relevant Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;; LEGAL_US_E # 159035042.9
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including to insurers which have provided insurance as to the collection thereof and any discount and/or or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the ordinary conduct of the business of the Borrower and its the Restricted Subsidiaries Subsidiaries, taken as a whole, or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in to the ordinary course of business (as determined in good faith by extent constituting Dispositions, the Borrower)Transactions;
(q) Disposition Dispositions of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary and sales of Real Estate Assets, in each case acquired in any acquisition permitted hereunder which, within 90 days of the date of such acquisition, are designated in writing to the business or operations Administrative Agent as being held for sale and not for the continued operation of the Borrower and its or any of the Restricted Subsidiaries or (ii) made in connection with any of their respective businesses; provided that no Event of Default has occurred and is continuing on the approval of any applicable antitrust authority or otherwise necessary or advisable in date on which the good faith determination of definitive agreement governing the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the BorrowerBorrower in good faith) for like assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded AssetAssets, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets assets so exchanged or swapped;
(s) [reserved]Dispositions of assets that do not constitute Collateral having an aggregate fair market value as determined in good faith by the Borrower of up to the greater of $29,000,000 and 7.0% of Consolidated Adjusted EBITDA for the most recently ended Test Period; provided that no Event of Default has occurred and is continuing on the date on which the definitive agreement governing the relevant Disposition is executed;
(i) licensing, sublicensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of any technology, LEGAL_US_E # 159035042.9 intellectual property or IP Rights, or issuances or registrations, or applications for issuances or registrations, of any intellectual property or IP Rights, which, in the reasonable business judgment good faith determination of the Borrower, are not no longer material to the conduct of the business of the Borrower or its and the Restricted Subsidiaries, taken as a whole, or are no longer economical to maintain in light of its their use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) other Dispositions in any Fiscal Year involving assets having a an aggregate fair market value (as reasonably determined in good faith by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 41,500,000 and 0.3610.0% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;; and
(bb) so long as Dispositions contemplated on the Borrower would be in compliance with Section 6.13(a) Closing Date and described on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingSchedule 6.07(bb). To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed it deems appropriate in order to effect the foregoing in accordance with Article 8 hereofforegoing.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower Borrowers shall not, nor shall it permit any of its their Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition Disposition, in a single transaction or in a series of any assetsrelated transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Lead Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a); Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Lead Borrower, (1A) the Lead Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Lead Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Lead Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Lead Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or involving any Subsidiary Guarantor, either (1x) the Borrower or a (i) such Subsidiary Guarantor shall be the continuing or surviving Person or (ii) the continuing or surviving Person shall (A) expressly assume the guarantee obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent and (B) be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;6.06 and (iii) in the case of any such merger, consolidation or amalgamation by a Restricted Subsidiary that is not a Loan Party into any other Restricted Subsidiary that is a Loan Party, any related intercompany Indebtedness assumed by such Restricted Subsidiary that is a Loan Party shall be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent;
(b) Dispositions (including of Capital Stock) among the Lead Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwiseotherwise); provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be for fair market value (as reasonably determined by such Person) with at least 75% of the consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or treated as an Investment and otherwise made in compliance with Section 6.06 (including other than in reliance on clause (j) thereof); provided, further, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party as a result of a Division);such Disposition must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent;
(c) (i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith provided that such liquidation or dissolution is in the best interests of the Borrowerdissolution, as applicable, would not reasonably be expected to have a Material Adverse Effect and is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; Lenders; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; 6.06; and (iii) the conversion of the any Borrower or any Restricted Subsidiary may be converted into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;any;
(d) (x) Dispositions of obsoleteinventory, damaged or worn out property or current assets, inventory, or equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrowerincluding on an intercompany basis), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) and (y) the leasing or subleasing of real property in the ordinary course of business;business and (z) Dispositions of (A) accounts receivable in connection with the collection or compromise thereof (including sales to factors or other third parties) and (B) receivables and related assets pursuant to any Permitted Receivables Financing;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the any Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the any Borrower) or (B) otherwise economically impracticable to maintain;maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or or other assets that were Cash Equivalents when the relevant original Investment was made;made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));6.04(a)(ix));
(h) Dispositions for fair market value; value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 35,000,000 and 0.354% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, as applicable, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 Borrowers or any Restricted Subsidiary) of the Borrower Borrowers or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets and for which the Borrower Borrowers and/or its their 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 assets acquired in connection with such Disposition, (y) any Securities received by the Borrower Borrowers 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 20,000,000 and 0.752% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); Cash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists shall exist and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are reasonably promptly applied to the purchase price of such replacement property;property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereofthereof and any factoring, early pay or similar supply chain financing arrangement) or in connection with the collection or compromise thereof;thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license)) in the ordinary course of business, (i) the Disposition or termination of which will do not materially interfere with the business of the Lead Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;Subsidiaries;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);[Reserved];
(q) Disposition Dispositions of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary acquired in connection with any acquisition permitted hereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, within 90 days of the date of such acquisition, are designated in writing to the business or operations Administrative Agent as being held for sale and not for the continued operation of the Borrower and its Borrowers or any of their Restricted Subsidiaries or any of their respective businesses; provided that (i) the Net Proceeds received in connection with any such Disposition shall be applied and/or reinvested as (and to the extent required) by Section 2.11(b)(ii) and (ii) made in connection with no Event of Default exists on the approval of any applicable antitrust authority or otherwise necessary or advisable in date on which the good faith determination of definitive agreement governing the Borrower to consummate any acquisition permitted hereunder;relevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange or swap is made for fair value (as reasonably determined by the applicable Borrower) for like assets; property or assets; provided that, that (i) upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets property received do does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business swapped and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, any Net Proceeds received as “cash boot” in the reasonable business judgment of the Borrower, are not material connection with any such transaction shall be applied and/or reinvested as (and to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
extent required) by Section 2.11(b)(ii); (us) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or AAG Integration Transaction and (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.Permitted Reorganization;
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of mergermerge, consolidation or amalgamationconsolidate, consummate a Division as the Dividing Personamalgamate, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any voluntary Disposition of assets outside the ordinary course of business having a fair market value in excess of the greater of $6,000,000 and 10% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period in any assetssingle transaction or series of related transactions (including, in each case, pursuant to a Delaware LLC Division), except:
(a) (i) the Borrower or any Subsidiary Guarantor may be merged, consolidated or amalgamated with another Person or, if applicable, effect a Delaware LLC Division, or any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiariesif applicable, such effect a Delaware LLC Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a); provided that that:
(Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower or any Delaware LLC Division relating to the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation consolidation, amalgamation or amalgamation Delaware LLC Division is not the Borrower (any such Person, the “Successor Borrower”), (x1) the Successor Borrower shall be an entity organized or existing under the law of the U.S.US, any state thereof or the District of Columbia, (y2) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z3) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x1) through (z3) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and and
(Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower any Subsidiary Guarantor or any Delaware LLC Division relating to any Subsidiary Guarantor, either (1A) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person (or, in the case of an amalgamation, the Person formed as a result thereof) shall expressly assume the obligations of the Borrower or such Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2B) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that if the relevant Disposition is to a Restricted Subsidiary that is not a Loan Party, the relevant transaction shall be treated as an Investment and shall comply with Section 6.06; WEIL:\98124242\16\45453.0004 WEIL:\98997375\7\45453.0004
(c) (including as a result of a Division);
(i) the liquidation liquidation, dissolution or dissolution Delaware LLC Division of any Restricted Subsidiary if the Borrower determines in good faith that (A) such liquidation liquidation, dissolution or dissolution Delaware LLC Division is in the best interests of the Borrower, Borrower and (B) is not materially disadvantageous to the Lenders (taken as a whole) and (ii) the Borrower or any Restricted Subsidiary receives any the assets (if any) of the relevant liquidated, dissolved or liquidated divided Restricted Subsidiary; provided that in the case of any liquidation liquidation, dissolution or dissolution Delaware LLC Division of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation liquidation, consolidation or consolidationDelaware LLC Division, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.066.06 (other than Section 6.06(j)); and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not not, in the good faith determination of the Borrower, adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property equipment or assets, inventory, equipment and other immaterial assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable good faith judgment of the Borrower, is (Ai) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (Bii) otherwise economically impracticable to maintain, including any property abandoned in connection with the termination of any lease;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (wor would result in) (i) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (xii) Permitted Liens and (yiii) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that that:
(i) with respect to any such Disposition involving assets (other than any Permitted Asset Swap) with a purchase price in excess of the greater of $45,000,000 6,000,000 and 0.3510% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 75% of the consideration for such Disposition (other than the portion of any such Disposition consisting of a Permitted Asset Swap) shall consist of Cash or Cash Equivalents Equivalents;
(provided that ii) for purposes of the 75% Cash consideration requirement, requirement described immediately above:
(wA) 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 in the notes thereto)) that are assumed by the transferee of any such assets (or that are otherwise terminated or cancelled in connection with the transaction with such transferee) and for which the Borrower and/or its applicable Restricted Subsidiary have been validly released by all relevant creditors in writing, ,
(xB) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, ,
(yC) any Securities Security received by the Borrower or any Restricted Subsidiary from such transferee that are will be converted by such Person into Cash or Cash Equivalents (to WEIL:\98124242\16\45453.0004 WEIL:\98997375\7\45453.0004 the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition and Disposition, and
(zD) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (zD) that is at that time outstanding, not in excess of the greater of $105,000,000 12,000,000 and 0.7520% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that and
(xiii) on the date on which the agreement governing such Disposition is executed, no Event amount of Default under Section 7.01(aDispositions made pursuant to this clause (h), (ftogether with the amount of Dispositions made pursuant to Section 6.07(aa) or (g) exists below, does not exceed the greater of $21,000,000 and (y) 35% of Consolidated Adjusted EBITDA as of the Net Proceeds last day of the most recently ended Test Period in any Fiscal Year, which, if not used in such Disposition Fiscal Year, shall be applied and/or reinvested as (and carried forward to the extent) required by Section 2.11(b)(iinext Fiscal Year (but not to any succeeding Fiscal Years to the extent not fully utilized in the immediately succeeding Fiscal Year; it being understood and agreed that such carried forward amounts shall be deemed utilized first in any Fiscal Year prior to utilization of the indicative amount for such Fiscal Year);
(i) Dispositions to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions Dispositions, discounting or forgiveness of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness to insurers which have provided insurance as to the collection thereof) or in connection with the collection or compromise thereofthereof (including sales to factors);
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries (taken as a whole) or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)[reserved];
(q) Disposition Dispositions of any non-core (as determined by the Borrower in good faith) assets (i) acquired in a connection with any acquisition or other investment Investment permitted hereunder and sales of Real Estate Assets acquired in any acquisition or other Investment permitted hereunder; provided that no Event of Default under Section 7.01(a), which assets are (xf) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (yg) non-core assets or unnecessary to exists on the business or operations of date on which the Borrower and its Restricted Subsidiaries or (ii) made in connection with definitive agreement governing the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;relevant Disposition is executed; WEIL:\98124242\16\45453.0004 WEIL:\98997375\7\45453.0004
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the BorrowerBorrower in good faith) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped(including Related Business Assets);
(s) [reserved]Dispositions of assets that do not constitute Collateral for fair market value;
(i) any Disposition, licensing, sublicensing and and/or cross-licensing arrangements arrangement involving any technology or IP Rights Right of the Borrower or any Restricted Subsidiary in the ordinary course of business business, and (ii) Dispositionsany Disposition, abandonmentsabandonment, cancellations cancellation or lapses lapse of any IP RightsRight, or issuances any issuance or registrationsregistration, or applications application for issuances issuance or registrationsregistration, of any IP RightsRight, which, in the reasonable business judgment good faith determination of the Borrower, are Borrower is not material to the conduct of the business of the Borrower or and its Restricted Subsidiaries, taken as a whole, or are is no longer economical to maintain in light of its use;
(u) terminations any termination or unwinds unwind of Derivative TransactionsTransactions or Banking Services Obligations;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of LawLaw (including as a condition to, or in connection with, the consummation of the Transactions);
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Restricted Subsidiary in another jurisdiction in the U.S. US and/or (ii) any Foreign Subsidiary in the U.S. US or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value in the aggregate, together with the amount of Dispositions made pursuant to clause (as reasonably determined by the Borrower at the time of the relevant Dispositionh) above, of not more than the greater of $50,000,000 21,000,000 and 0.3635% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to the next Fiscal Year (but not to any succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets Years to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of not fully utilized in the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Dispositionimmediately succeeding Fiscal Year; it being understood and agreed that the Administrative Agent such carried forward amounts shall be authorized deemed utilized first in any Fiscal Year prior to take, and shall take, any actions deemed appropriate in order to effect utilization of the foregoing in accordance with Article 8 hereof.indicative amount for such Fiscal Year);
Appears in 1 contract
Samples: Credit Agreement (First Watch Restaurant Group, Inc.)
Fundamental Changes; Disposition of Assets. The Other than the Transactions, the Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value in excess of $25,000,000 in a single transaction or a series of related transactions and in excess of $50,000,000 in the aggregate for all such transactions per year, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property equipment or assets, inventory, equipment and other immaterial assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and Liens, (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and (z) Sale and Lease-Back Transactions in an aggregate outstanding principal amount not to exceed the greater of $70,500,000 and 30% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 35,250,000 and 0.3515% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 70,500,000 and 0.7530% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(m) (i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions to the extent constituting a Disposition, the consummation of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)Transaction;
(q) Disposition Dispositions of any non-core assets (i) acquired in a connection with any acquisition or other investment permitted hereunderhereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, which assets within 90 days of the date of such acquisition, are (x) designated in writing to the Administrative Agent as being held for sale and not used or useful in for the ordinary course or the principal business continued operation of the Borrower and or any of its Restricted Subsidiaries or (y) non-core assets or unnecessary to any of their respective businesses; provided that no Event of Default exists on the business or operations of date on which the Borrower and its Restricted Subsidiaries or (ii) made in connection with definitive agreement governing the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved]Dispositions of assets that do not constitute Collateral;
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 35,250,000 and 0.3615% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis Fiscal Year in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.
Appears in 1 contract
Samples: Credit Agreement (CCC Intelligent Solutions Holdings Inc.)
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value (as reasonably determined in good faith by the Borrower) in excess of $10,000,000 in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary Subsidiary, and the Borrower may be merged, consolidated or amalgamated with or into any other Person (ii) including any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(aSubsidiary); provided that (A) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1i) the Borrower shall be the continuing or surviving Person or (2ii) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (xw) the Successor Borrower shall be an entity organized or existing under the law laws of the U.S.US, any state thereof or the District of Columbia, (yx) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent, (y) the Administrative Agent shall have a security interest in the Collateral for the benefit of the Secured Parties pursuant to the Collateral Documents that is perfected to at least the same extent as in effect immediately prior to such merger, consolidation or amalgamation and all actions reasonably requested by the Administrative Agent to maintain such perfected status have been or will promptly be taken (subject to the terms of the applicable Loan Documents), and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (xw) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital StockStock issued by any Restricted Subsidiary) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the BorrowerBorrower or such Restricted Subsidiary, is not materially disadvantageous to the Lenders Lenders, and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause Section 6.07(a) or (b) or this clause (cSection 6.07(c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entityentity (and solely with respect to the Borrower, organized in the US, any state thereof or the District of Columbia), so long as such conversion does not adversely affect the value of the Guarantees under the Loan Guaranty or the Collateral, if anytaken as a whole;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of including on an intercompany basis among the Borrower and its Restricted Subsidiaries) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (Ai) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (Bii) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and Liens, (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) or (z) Sale and Lease-Back Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 15,000,00043,000,000 and 0.3510.0% of Consolidated Total Assets as Adjusted EBITDA of the last day of Borrower for the most recently ended Test Period calculated on a Pro Forma BasisPeriod, either (A) at least 75% of the consideration for such Disposition all Dispositions consummated pursuant to this Section 6.07(h) since the Original Closing Date shall consist of Cash or Cash Equivalents or (B) at least 50% of the consideration for all Dispositions consummated pursuant to this Section 6.07(h) since the Original Closing Date shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% or 50% Cash consideration requirement, as applicable, (w) the greater of the principal amount and carrying value of any Indebtedness or other liabilities (other than Indebtedness as reflected on the most recent balance sheet of the Borrower (or other a Parent Company) provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that are subordinated would have been reflected on the balance sheet of the Borrower (or Parent Company) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the Obligations or that are owed to date of such balance sheet, as determined in good faith by the Borrower or any Restricted SubsidiaryBorrower) of the Borrower or any such Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in Subsidiary, other than liabilities that are by their terms subordinated to the notes thereto)) Obligations, that are assumed by the transferee of any such assets and for (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases the Borrower and/or its applicable or such Restricted Subsidiary have been validly released by all relevant creditors in writingfrom such liabilities, (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 Restricted Subsidiary from such the 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 in respect of such Disposition having an aggregate fair market valuevalue (as reasonably determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) and Section 6.08(b) that is at that time outstanding, not in excess of the greater of $105,000,000 30,000,00086,000,000 and 0.7520.0% of Consolidated Total Assets as Adjusted EBITDA of the last day of Borrower for the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (yi) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii) and (ii) for purposes of calculating the amount of prepayments required under Section 2.11(b)(ii) with the Net Proceeds of Dispositions consummated pursuant to clause (B) of this Section 6.07(h), the Borrower shall not be entitled to deduct from the calculation of such Net Proceeds any amounts reinvested in the business of the Borrower or any of its subsidiaries);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or (i) accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereofthereof and sales to factors or similar third parties) or in connection with the collection or compromise thereofthereof and (ii) receivables and related assets pursuant to any Permitted Receivables Financing;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product or business line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closedclosed (or otherwise in connection with the closing or sale of any facility);
(p) Dispositions to the extent otherwise restricted by this Section 6.07, the consummation of Real Estate Investments in the ordinary course of business Transactions (as determined in good faith by including the Borrower)Target Merger)[reserved];
(q) Disposition Dispositions of any non-core assets (i) and sales of Real Estate Assets acquired in a any acquisition or other investment permitted hereunder, hereunder which assets are (x) the Borrower determines in good faith will not be used or useful in for the ordinary course or the principal business continued operation of the Borrower and or any of its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations any of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereundertheir respective businesses;
(r) exchanges or swaps, including including, without limitation, transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded AssetAssets, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved]Dispositions of assets that do not constitute Collateral for fair market value;
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or other IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances issuance or registrationsregistration, or applications for issuances issuance or registrationsregistration, of IP Rights, which, in the reasonable business judgment good faith determination of the Borrower, are not material to the conduct of the business of the Borrower or and its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business of the Borrower and/or its subsidiaries in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of LawLaw (including, without limitation, the Dispositions of any assets (including Capital Stock) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition);
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. US, any state thereof or the District of Columbia and/or (ii) any Foreign Subsidiary in the U.S. US or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) other Dispositions involving assets having a fair market value (as reasonably determined in good faith by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 23,000,00064,500,000 and 0.3615.0% of Consolidated Total Assets as Adjusted EBITDA of the last day of Borrower for the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;Period; and
(bb) so long as Dispositions contemplated on the Borrower would be in compliance with Section 6.13(a) Eighth Amendment Closing Date and described on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingSchedule 6.07 hereto. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate reasonably requested by the Borrower (including, without limitation, any full or partial release or subordination of any Lien granted pursuant to the terms of this Agreement) in order to effect the foregoing in accordance with Article 8 VIII hereof. Notwithstanding anything to the contrary contained in this Agreement, the Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, make any Disposition of, or any Investment in the form of, any assets (including intellectual property or IP Rights) to any Unrestricted Subsidiary, unless such Disposition or Investment is on an arm’s length basis and for fair market value, as determined in good faith by the Board of Directors or a Responsible Officer of the Borrower.
Appears in 1 contract
Samples: First Lien Credit Agreement (Waystar Holding Corp.)
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its the Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value (as determined in good faith by the Borrower) in excess of $10,000,000, in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall (x) expressly assume all of the Secured Obligations of the Borrower under each of the Loan Documents pursuant to documents and in a manner reasonably satisfactory to the Administrative Agent (and the Successor Borrower shall have provided customary certificates, board resolutions, customary legal opinions and other customary documents with respect to such assumption, if and to the extent reasonably requested by, and reasonably satisfactory to the Administrative Agent), and (y) such Successor Borrower shall become a “Borrower” and the “Company” hereunder and (z) except as the Administrative Agent may otherwise agree, each other Borrower and each Loan Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under this Agreement, if applicable, the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into any Loan Guarantor or the Borrower or (other than any Subsidiary Guarantorsuch transaction involving the Borrower, which shall be subject to the terms of clause (i) above), either (1x) a Loan Guarantor or the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the relevant Loan Guarantor or Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.066.04;
(b) Dispositions (including of Capital Stock) among the Borrower and/or or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as determined in good faith by such Person) with at least 75.0% of the consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition and no Event of Default shall then exist or immediately result therefrom or (ii) treated as an Investment and otherwise constitute a result Permitted Investment (other than a Permitted Investment of a Divisionthe type described in clause (j) of the definition thereof) or be made in compliance with Section 6.04(a);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any a Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 either be a Permitted Investment (other than a Permitted Investment of the type described in reliance on clause (j) of the definition thereof) or be made in compliance with Section 6.04(a); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under constituting a Permitted Investment or made in compliance with Section 6.066.04(a); and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other equipment, raw or scrap materials or immaterial assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property property, in the ordinary course of business, or other property that, in the reasonable judgment good faith determination of the Borrower, is (A) no longer useful in its business (or in the business of the Borrower or any Restricted Subsidiary of the BorrowerSubsidiary) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of (i) Cash and/or or Cash Equivalents and/or or other assets that were Cash Equivalents when the relevant original Investment was mademade and (ii) securities or other financial instruments in the ordinary course of business;
(g) (i) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Permitted Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)a Permitted Investment of the type described in clause (j) of the definition thereof), (x) Permitted Liens and (y) Liens, Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and (ii) Sale and Lease-Back Transactions permitted by Section 6.08;
(h) Dispositions for fair market valuevalue (as determined in good faith by the Borrower); provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 36,000,000 and 0.3510.0% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 7575.0% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (Equivalents; provided that that, for purposes of the 7575.0% Cash consideration requirement, (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 in the notes thereto)) that are assumed by the transferee of any such assets and for which the Borrower and/or 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 assets 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 so received) within 180 days following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market valuevalue (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 36,000,000 and 0.7510.0% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) no Event of Default has occurred and is continuing on the date on which the agreement governing such the relevant Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including to insurers which have provided insurance as to the collection thereof and any discount and/or or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the ordinary conduct of the business of the Borrower and its the Restricted Subsidiaries Subsidiaries, taken as a whole, or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in to the ordinary course of business (as determined in good faith by extent constituting Dispositions, the Borrower)Transactions;
(q) Disposition Dispositions of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary and sales of Real Estate Assets, in each case acquired in any acquisition permitted hereunder which, within 180 days of the date of such acquisition, are designated in writing to the business or operations Administrative Agent as being held for sale and not for the continued operation of the Borrower and its or any of the Restricted Subsidiaries or (ii) made in connection with any of their respective businesses; provided that no Event of Default has occurred and is continuing on the approval of any applicable antitrust authority or otherwise necessary or advisable in date on which the good faith determination of definitive agreement governing the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the BorrowerBorrower in good faith) for like assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded AssetAssets, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets assets so exchanged or swapped;
(s) [reserved]Dispositions of assets that do not constitute Collateral having an aggregate fair market value as determined in good faith by the Borrower of up to the greater of $36,000,000 and 10.0% of Consolidated Adjusted EBITDA for the most recently ended Test Period; provided that no Event of Default has occurred and is continuing on the date on which the definitive agreement governing the relevant Disposition is executed;
(i) licensing, sublicensing and cross-licensing arrangements involving any technology or IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of any technology or IP Rights, or of issuances or registrations, or applications for issuances or registrations, of any IP Rights, which, in the reasonable business judgment good faith determination of the Borrower, are not no longer material to the conduct of the business of the Borrower or its and the Restricted Subsidiaries, taken as a whole, or are no longer economical to maintain in light of its their use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) other Dispositions in any Fiscal Year involving assets having a an aggregate fair market value (as reasonably determined in good faith by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 36,000,000 and 0.3610.0% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) any Dispositions of assets described on Schedule 6.07(bb);,
(cc) Dispositions of interests in Investment Vehicles after the initial creation thereof to investors, so long as the Borrower would be in compliance with Section 6.13(a(i) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be is for no less than the fair market value (as determined in good faith by the Borrower), (ii) the consideration for such Disposition consists of Cash or Cash Equivalents and (iii) such Disposition is made within six months after the initial creation of such property at the time of such Disposition as determined by the Borrower in good faithInvestment Vehicle; and
(ccdd) any Disposition Dispositions of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingCapital Stock of Cxxxx Xxxx LLC. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed it deems appropriate in order to effect the foregoing in accordance with Article 8 hereofforegoing.
Appears in 1 contract
Samples: Credit Agreement (Cowen Inc.)
Fundamental Changes; Disposition of Assets. The Borrower Borrowers shall not, nor shall it they permit any of its their respective Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value (as reasonably determined in good faith by the Parent Borrower) in excess of $3,500,000 in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and Subsidiary;
(iii) any Borrower may be merged, consolidated or amalgamated with or into any other Person (including any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(aSubsidiary); provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1) the Borrower shall be the continuing or surviving Person or (2ii) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the such Borrower (any such Person, the “Successor Borrower”), (xw) the Successor Borrower shall be an entity organized or existing under the law laws of the U.S.US, any state thereof or the District of Columbia, (yx) the Successor Borrower shall expressly assume the Obligations of the such Borrower in a manner reasonably satisfactory to the Administrative Agent, (y) the Administrative Agent shall have a security interest in the Collateral for the benefit of the Secured Parties pursuant to the Collateral Documents that is perfected to at least the same extent as in effect immediately prior to such merger, consolidation or amalgamation and all actions reasonably requested by the Administrative Agent to maintain such perfected status have been or will promptly be taken (subject to the terms of the applicable Loan Documents), and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (xw) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the such Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the any Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division);
(c) (i) the liquidation or dissolution of any Restricted Subsidiary if the Parent Borrower determines in good faith that such liquidation or dissolution is in the best interests of the BorrowerBorrowers or such Restricted Subsidiary, is not materially disadvantageous to the Lenders Lenders, and the Borrower Borrowers or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (AAi) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause Section 6.07(a) or (b) or this clause (cSection 6.07(c)) or (BAii) any Investment permitted under Section 6.06; and (iiiiiii) the conversion of the any Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or the Collateral, if anytaken as a whole;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Parent Borrower, is (Ai) no longer useful in its business (or in the business of any Restricted Subsidiary of the any Borrower) or (Bii) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;; 149 [[NYCORP:3666673v10:4312W:08/14/2017--04:53 PM]][[5628396]]
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and Liens, (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) or (z) Sale-Leaseback Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 3,500,0006,500,000 and 0.357.0% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (w) the greater of the principal amount and carrying value of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to as reflected on 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 of the Parent Borrower (or statement of financial position (a Parent Company) provided hereunder or in the notes footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of the Parent Borrower (or Parent Company) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Parent Borrower) of any Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets and for (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which the releases such Borrower and/or its applicable or such Restricted Subsidiary have been validly released by all relevant creditors in writingfrom such liabilities, (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 any Borrower or any Restricted Subsidiary from such the 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 in respect of such Disposition having an aggregate fair market valuevalue (as reasonably determined in good faith by the Parent Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) and Section 6.08(b)(z) that is at that time outstanding, not in excess of the greater of $105,000,000 10,000,00018,500,000 and 0.7520.0% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or (i) accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereofthereof and sales to factors or similar third parties) or in connection with the collection or compromise thereofthereof and (ii) receivables and related assets pursuant to any Permitted Receivables Financing;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the any Borrower and any of its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product or business line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;; 150 [[NYCORP:3666673v10:4312W:08/14/2017--04:53 PM]][[5628396]]
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closedclosed (or otherwise in connection with the closing or sale of any facility);
(p) Dispositions to the extent otherwise restricted by this Section 6.07, the consummation of Real Estate Investments in the ordinary course of business Transactions (as determined in good faith by including the BorrowerTarget Merger);
(q) Disposition Dispositions of any non-core assets (i) and sales of Real Estate Assets acquired in a any acquisition or other investment permitted hereunder, hereunder which assets are (x) the Parent Borrower determines in good faith will not be used or useful in for the ordinary course continued operation of any Borrower or the principal business any of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations any of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereundertheir respective businesses;
(r) exchanges or swaps, including including, without limitation, transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Parent Borrower) for like assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded AssetAssets, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved]Dispositions of assets that do not constitute Collateral for fair market value;
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or other IP Rights of the any Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances issuance or registrationsregistration, or applications for issuances issuance or registrationsregistration, of IP Rights, which, in the reasonable business judgment good faith determination of the Parent Borrower, are not material to the conduct of the business of the any Borrower or and any of its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, any Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of LawLaw (including, without limitation, the Dispositions of any assets (including Capital Stock) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition);
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. US and/or (ii) any Foreign Subsidiary in the U.S. US or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) other Dispositions involving assets having a fair market value (as reasonably determined in good faith by the Parent Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 7,500,00014,000,000 and 0.3615.0% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;Period; and
(bb) so long as Dispositions contemplated on the Borrower would be in compliance with Section 6.13(a) Closing Date and described on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingSchedule 6.07 hereto. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it 151 [[NYCORP:3666673v10:4312W:08/14/2017--04:53 PM]][[5628396]] being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate reasonably requested by the Parent Borrower (including, without limitation, any full or partial release or subordination of any Lien granted pursuant to the terms of this Agreement) in order to effect the foregoing in accordance with Article 8 hereof.
Appears in 1 contract
Samples: Credit Agreement (Certara, Inc.)
Fundamental Changes; Disposition of Assets. The Borrower Holdings shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assets, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower Holdings or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a); provided that (A) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1) the Borrower shall be the continuing or surviving Person or (2) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent (acting at the direction of the Required Lenders) and (z) except as the Administrative Agent (acting at the direction of the Required Lenders) may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent (acting at the direction of the Required Lenders) or (2) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division); provided that all Dispositions under this Section 6.07(b) by a Loan Party to a Subsidiary that is not a Loan Party during the course of this Agreement shall not exceed the greater of $10,000,000 and 0.24% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis;
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Division, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower Holdings and its Restricted Subsidiaries) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the BorrowerHoldings and its Subsidiaries) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market valuevalue (as determined in good faith by the applicable Loan Party or Subsidiary); provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in 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 assets acquired in connection with such Disposition, Disposition and (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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test PeriodDisposition, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and exists, (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii)) and (z) any such asset sale that would be required to be disclosed by Holdings in a Current Report on Form 8-K shall have been approved by the board of directors (or other applicable governing body) of the relevant Loan Party or Subsidiary;
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower Holdings and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions to the extent constituting a Disposition, the issuance, sale and Disposition of Real Estate Investments preferred shares of Subsidiary REIT Borrower on customary terms to third parties to the extent such arrangements are (i) substantially consistent in all material respects with (or no more burdensome to Subsidiary REIT Borrower than) the ordinary course of business Subsidiary REIT Permitted Preferred Terms or (as determined in good faith by ii) otherwise reasonably acceptable to the Borrower)Required Lenders;
(q) Disposition of any assets (i) acquired in a an acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower Holdings and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower Holdings and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved]any (i) Disposition of CRE Finance Assets and/or related assets, directly or indirectly, (x) in connection with any Asset Financing Facility and any transaction in connection therewith, (y) in the ordinary course of business or (z) substantially consistent with past practice, and (ii) any transaction in connection with the servicing, administration, operation or management (including property management) of CRE Finance Assets in the ordinary course of business (as determined in good faith by the Borrower);
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights Intellectual Property of the Borrower Holdings or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP RightsIntellectual Property, or issuances or registrations, or applications for issuances or registrations, of IP RightsIntellectual Property, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or Holdings and its Restricted Subsidiaries, taken as a whole, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Interest Hedge Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries[reserved];
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by Holdings or the Borrower relevant Subsidiary at the time of the relevant Disposition) in the aggregate of not more than the greater of $50,000,000 10,000,000 and 0.360.24% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal YearsBasis;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) 6.13 on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent (at the direction of the Required Lenders) shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Granite Point Mortgage Trust Inc.)
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of mergermerge, consolidation or amalgamationconsolidate, consummate a Division as the Dividing Personamalgamate, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any voluntary Disposition of assets outside the ordinary course of business having a fair market value in excess of the greater of $6,000,000 and 10% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period in any assetssingle transaction or series of related transactions (including, in each case, pursuant to a Delaware LLC Division), except:
(a) (i) the Borrower or any Subsidiary Guarantor may be merged, consolidated or amalgamated with another Person or, if applicable, effect a Delaware LLC Division, or any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiariesif applicable, such effect a Delaware LLC Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a); provided that that:
(Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower or any Delaware LLC Division relating to the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation consolidation, amalgamation or amalgamation Delaware LLC Division is not the Borrower (any such Person, the “Successor Borrower”), (x1) the Successor Borrower shall be an entity organized or existing under the law of the U.S.US, any state thereof or the District of Columbia, (y2) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z3) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x1) through (z3) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and and
(Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower any Subsidiary Guarantor or any Delaware LLC Division relating to any Subsidiary Guarantor, either (1A) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person (or, in the case of an amalgamation, the Person formed as a result thereof) shall expressly assume the obligations of the Borrower or such Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2B) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including ); provided that if the relevant Disposition is to a Restricted Subsidiary that is not a Loan Party, the relevant transaction shall be treated as a result of a Division)an Investment and shall comply with Section 6.06;
(i) the liquidation liquidation, dissolution or dissolution Delaware LLC Division of any Restricted Subsidiary if the Borrower determines in good faith that (A) such liquidation liquidation, dissolution or dissolution Delaware LLC Division is in the best interests of the Borrower, Borrower and (B) is not materially disadvantageous to the Lenders (taken as a whole) and (ii) the Borrower or any Restricted Subsidiary receives any the assets (if any) of the relevant liquidated, dissolved or liquidated divided Restricted Subsidiary; provided that in the case of any liquidation liquidation, dissolution or dissolution Delaware LLC Division of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation liquidation, consolidation or consolidationDelaware LLC Division, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.066.06 (other than Section 6.06(j)); and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not not, in the good faith determination of the Borrower, adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property equipment or assets, inventory, equipment and other immaterial assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable good faith judgment of the Borrower, is (Ai) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (Bii) otherwise economically impracticable to maintain, including any property abandoned in connection with the termination of any lease;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (wor would result in) (i) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (xii) Permitted Liens and (yiii) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that that:
(i) with respect to any such Disposition involving assets (other than any Permitted Asset Swap) with a purchase price in excess of the greater of $45,000,000 6,000,000 and 0.3510% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 75% of the consideration for such Disposition (other than the portion of any such Disposition consisting of a Permitted Asset Swap) shall consist of Cash or Cash Equivalents Equivalents;
(provided that ii) for purposes of the 75% Cash consideration requirement, requirement described immediately above:
(wA) 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 in the notes thereto)) that are assumed by the transferee of any such assets (or that are otherwise terminated or cancelled in connection with the transaction with such transferee) and for which the Borrower and/or its applicable Restricted Subsidiary have been validly released by all relevant creditors in writing, ,
(xB) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, ,
(yC) any Securities Security received by the Borrower or any Restricted Subsidiary from such transferee that are will be 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 Disposition, and
(zD) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (zD) that is at that time outstanding, not in excess of the greater of $105,000,000 12,000,000 and 0.7520% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that and
(xiii) on the date on which the agreement governing such Disposition is executed, no Event amount of Default under Section 7.01(aDispositions made pursuant to this clause (h), (ftogether with the amount of Dispositions made pursuant to Section 6.07(aa) or (g) exists below, does not exceed the greater of $21,000,000 and (y) 35% of Consolidated Adjusted EBITDA as of the Net Proceeds last day of the most recently ended Test Period in any Fiscal Year, which, if not used in such Disposition Fiscal Year, shall be applied and/or reinvested as (and carried forward to the extent) required by Section 2.11(b)(iinext Fiscal Year (but not to any succeeding Fiscal Years to the extent not fully utilized in the immediately succeeding Fiscal Year; it being understood and agreed that such carried forward amounts shall be deemed utilized first in any Fiscal Year prior to utilization of the indicative amount for such Fiscal Year);
(i) Dispositions to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions Dispositions, discounting or forgiveness of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness to insurers which have provided insurance as to the collection thereof) or in connection with the collection or compromise thereofthereof (including sales to factors);
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries (taken as a whole) or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)[reserved];
(q) Disposition Dispositions of any non-core (as determined by the Borrower in good faith) assets (i) acquired in a connection with any acquisition or other investment Investment permitted hereunder and sales of Real Estate Assets acquired in any acquisition or other Investment permitted hereunder; provided that no Event of Default under Section 7.01(a), which assets are (xf) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (yg) non-core assets or unnecessary to exists on the business or operations of date on which the Borrower and its Restricted Subsidiaries or (ii) made in connection with definitive agreement governing the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the BorrowerBorrower in good faith) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped(including Related Business Assets);
(s) [reserved]Dispositions of assets that do not constitute Collateral for fair market value;
(i) any Disposition, licensing, sublicensing and and/or cross-licensing arrangements arrangement involving any technology or IP Rights Right of the Borrower or any Restricted Subsidiary in the ordinary course of business business, and (ii) Dispositionsany Disposition, abandonmentsabandonment, cancellations cancellation or lapses lapse of any IP RightsRight, or issuances any issuance or registrationsregistration, or applications application for issuances issuance or registrationsregistration, of any IP RightsRight, which, in the reasonable business judgment good faith determination of the Borrower, are Borrower is not material to the conduct of the business of the Borrower or and its Restricted Subsidiaries, taken as a whole, or are is no longer economical to maintain in light of its use;
(u) terminations any termination or unwinds unwind of Derivative TransactionsTransactions or Banking Services Obligations;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of LawLaw (including as a condition to, or in connection with, the consummation of the Transactions);
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Restricted Subsidiary in another jurisdiction in the U.S. US and/or (ii) any Foreign Subsidiary in the U.S. US or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value in the aggregate, together with the amount of Dispositions made pursuant to clause (as reasonably determined by the Borrower at the time of the relevant Dispositionh) above, of not more than the greater of $50,000,000 21,000,000 and 0.3635% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to the next Fiscal Year (but not to any succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets Years to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of not fully utilized in the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Dispositionimmediately succeeding Fiscal Year; it being understood and agreed that such carried forward amounts shall be deemed utilized first in any Fiscal Year prior to utilization of the indicative amount for such Fiscal Year);
(bb) Dispositions in connection with reorganizations and/or restructurings and/or activities related to tax planning; provided that, after giving effect to any such reorganization, restructuring or activity, in the good faith determination of the Borrower, neither the Loan Guaranty, taken as a whole, nor the security interest of the Administrative Agent in the Collateral, taken as a whole, is materially impaired;
(cc) Dispositions of assets in connection with the closing or sale of an office in the ordinary course of business of the Borrower and the Restricted Subsidiaries, which consist of leasehold interests in the premises of such office, the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such office; provided that any such sale shall be authorized to take, at a commercially reasonable price and on commercially reasonable terms in a bona fide arm’s-length transaction;
(dd) [reserved];
(ee) Sale and Lease-Back Transactions; provided that (i) the fair market value of all property so Disposed of after the Closing Date shall take, not exceed the greater of $21,000,000 and 35% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period and (ii) the Borrower shall be in compliance with Section 6.10(a) and Section 6.10(b) on a Pro Forma Basis;
(ff) [reserved];
(gg) [reserved];
(hh) [reserved];
(ii) the settlement or early termination of any actions deemed appropriate in order to effect Permitted Bond Hedge Transaction and/or any related Permitted Warrant Transaction; (jj) Dispositions of any asset acquired with the foregoing in accordance with Article 8 hereof.proceeds of an Available Excluded Contribution Amount; and
Appears in 1 contract
Samples: Credit Agreement (First Watch Restaurant Group, Inc.)
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of assets having a fair market value in excess of $5,000,000, in a single transaction or in a series of related transactions, and in excess of $10,000,000 in the aggregate for all such transactions in any assetsFiscal Year, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation (including any immediate and successive mergers, consolidations or amalgamations of entities) is not the Borrower (any such PersonPerson after giving effect to such transaction or transactions, the “Successor Borrower”), (x1) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y2) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z3) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x1) through (z3) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the guarantee obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply otherwise be made in compliance with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result of a Divisiondetermined by such Person in good faith) or (ii) treated as an Investment and otherwise be made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders Lenders, and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply otherwise be made in compliance with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary may be converted into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or the Collateral, if anytaken as a whole;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventorygoods held for sale, equipment and or other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable good faith judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable or not commercially reasonable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or or other assets that were Cash and/or Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (wor are made in order to effectuate) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Liens, Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and Sale and Lease-Back Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to (1) any such single Disposition involving transaction with respect to assets with having a purchase price fair market value in excess of the greater of $45,000,000 5,000,000 and 0.354% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated or (2) any other Disposition transactions with respect to assets having a fair market value in excess of the greater of $10,000,000 and 7% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, for all such transactions on a Pro Forma Basisan aggregate basis in any Fiscal Year, at least 75% of the consideration for such Disposition Disposition, shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (wv) 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 in the notes thereto), or if the incurrence of such Indebtedness or other liability took place after the date of such balance sheet, that would have been shown on such balance sheet or in the notes thereto, as determined in good faith by the Borrower) that are (i) 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 writingwriting or (ii) otherwise cancelled or terminated in connection with such Disposition, (xw) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (yx) any Securities or other obligations or assets received by the Borrower or any Restricted Subsidiary from such transferee (including earn-outs or similar obligations) that are converted by such Person into Cash or Cash Equivalents, or by their terms are required to be satisfied for 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 (zy) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (zy) and clause (C)(z) of the proviso to Section 6.08 that is at that time outstanding, not in excess of the greater of $105,000,000 10,000,000 and 0.757% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period, in each case, case shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly (or within 180 days) applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures Joint Ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof, or as part of any bankruptcy or similar proceeding;
(l) Dispositions and/or terminations of of, or constituting, leases, subleases, licenses, sublicenses or cross-licenses or sublicenses (including the provision of software under any open source license), the Dispositions or terminations of which (i) the Disposition or termination of which will do not materially interfere with the business of the Borrower and its Restricted Subsidiaries or Subsidiaries, (ii) which relate to closed facilities or the discontinuation of any product lineline or (iii) are made in the ordinary course of business;
(i) any termination of any lease lease, sublease, license or sub-license in the ordinary course of businessbusiness (and any related Disposition of improvements made to leased real property resulting therefrom), (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, expropriation, forced disposition, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold or licensed interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) the Transactions and any Dispositions in connection with the Transactions; (q) Dispositions of non-core assets and sales of Real Estate Investments Assets, in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) each case acquired in a any acquisition or other investment Investment permitted hereunder, which assets are (x) not used which Disposition or useful in sale is required to obtain the ordinary course or the principal business approval of the Borrower and its Restricted Subsidiaries any anti-trust authority or (y) non-core assets or unnecessary to the business or operations which, within 120 days of the Borrower and its Restricted Subsidiaries date of such acquisition or (ii) made Investment, are designated in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower writing to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with as being held for sale and not for the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights continued operation of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority Subsidiaries or any applicable Requirement of Lawtheir respective businesses;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.
Appears in 1 contract
Samples: First Lien Credit Agreement (Isos Acquisition Corp.)
Fundamental Changes; Disposition of Assets. The Other than the Acquisition, the Closing Date Merger and the other Transactions, the Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value in excess of $20,000,000 in a single transaction or a series of related transactions and in excess of $50,000,000 in the aggregate for all such transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property equipment or assets, inventory, equipment and other immaterial assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and Liens, (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and (z) Sale and Lease-Back Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 30,000,000 and 0.3515% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) and Section 6.08(B)(1)(z) that is at that time outstanding, not in excess of the greater of $105,000,000 55,000,000 and 0.7530% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions to the extent constituting a Disposition, the consummation of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)Transaction;
(q) Disposition Dispositions of any non-core assets (i) acquired in a connection with any acquisition or other investment permitted hereunderhereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, which assets within 90 days of the date of such acquisition, are (x) designated in writing to the Administrative Agent as being held for sale and not used or useful in for the ordinary course or the principal business continued operation of the Borrower and or any of its Restricted Subsidiaries or (y) non-core assets or unnecessary to any of their respective businesses; provided that no Event of Default exists on the business or operations of date on which the Borrower and its Restricted Subsidiaries or (ii) made in connection with definitive agreement governing the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved]Dispositions of assets that do not constitute Collateral for fair market value; provided that the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(t) (i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 30,000,000 and 0.3615% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis Fiscal Year in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.
Appears in 1 contract
Samples: First Lien Credit Agreement (Dragoneer Growth Opportunities Corp.)
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value (as reasonably determined by the Borrower) in excess of $3,000,000 in a single transaction or in a series of related transactions or in excess of $5,000,000 in the aggregate for all such transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person ifSubsidiary; provided, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a); provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (v) written notice of such merger, consolidation or amalgamation must be provided to the Administrative Agent at least ten (10) Business Days prior to the effectiveness thereof, (w) the Borrower shall have delivered to the Administrative Agent all documentation and other information requested by the Administrative Agent with respect to such Successor Borrower (including any Beneficial Ownership Certification) required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act and the Beneficial Ownership Regulation, no later than two Business Days prior to the date of such effectiveness (or such later date as may be agreed by the Administrative Agent), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations all obligations of the Borrower in under this Agreement and the other Loan Documents to which it is a manner party pursuant to an agreement reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty Guarantee Agreement and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (xv) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation by, or with or into the Borrower or into, any Subsidiary Guarantor, either (1x) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person shall be a Subsidiary Guarantor or the continuing or surviving Person shall expressly assume the obligations of the Borrower or such Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.066.05 (other than in reliance on clause (j) thereof);
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided, that any such Disposition made by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by the Borrower) with at least 75.0% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.05 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, Borrower and is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted SubsidiaryLenders; provided provided, that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 6.05 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, consolidation, amalgamation, dissolution, dissolution or liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 6.06 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.066.05(j); and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, entity so long as as, in the case of any Loan Party, such conversion does not adversely affect the value of materially impair the Loan Guaranty or Collateral, if anyGuaranties taken as a whole;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (Ai) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (Bii) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute or effect (wi) Investments permitted pursuant to Section 6.06 6.05 (other than Section 6.06(j6.05(j)), (xii) Permitted Liens and Liens, (yiii) Restricted Payments permitted by Section 6.04(a6.03(a) (other than Section 6.04(a)(ix6.03(a)(ix))) and (iv) Sale-Lease-Back Transactions permitted by Section 6.07;
(h) Dispositions for fair market valuevalue (as reasonably determined by the Borrower); provided provided, that with respect to any such Disposition involving if the assets with Disposed of have a purchase price fair market value in excess of the greater of $45,000,000 10,000,000 and 0.3510.0% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 7575.0% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided provided, that for purposes of the 75% Cash foregoing consideration requirement, (wi) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated in right of payment 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 in 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, (xii) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated in right of payment to the Obligations or that are owed to the Borrower or any Restricted Subsidiary) of any Restricted Subsidiary that, as a result of such Disposition or any related Disposition, is no longer a Restricted Subsidiary, to the extent that the Borrower and the other Restricted Subsidiaries have been validly released by all relevant creditors in writing from any Guarantee in respect of such Indebtedness or other liability, (iii) the amount of any trade-in value (as reasonably determined by the Borrower) applied to the purchase price of any replacement assets acquired in connection with such Disposition, (yiv) any Securities received by the Borrower or any Restricted Subsidiary from such the applicable 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 (zv) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market valuevalue (as reasonably determined by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (zv) and clause (IV) of Section 6.07 that is at that time outstanding, not in excess of the greater of $105,000,000 10,000,000 and 0.7510.0% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (xA) on the date on which the agreement governing immediately prior to and after giving effect to such Disposition is executedDisposition, no Event of Default under Section 7.01(a7.1(a), (f7.1(f) or (g7.1(g) exists and (yB) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii2.10(b)(ii);
(i) Dispositions of property to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in any joint ventures venture or any Restricted Subsidiary that is not a Wholly-Owned Subsidiary, in each case, to the extent required by, or made pursuant to, customary buy/sell arrangements between parties to such joint venture or equityholders in such Restricted Subsidiary set forth in the joint venture parties set forth in agreement, operating agreement, shareholders agreement or similar agreement governing such joint venture arrangements and similar binding arrangementsor such Restricted Subsidiary;
(k) Dispositions of (i) notes receivable or accounts receivable in the ordinary course of business (including any discount discount, netting and/or forgiveness thereof) or in connection with the collection or compromise thereofthereof and (ii) Receivables Assets, in connection with any Receivables Facility;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries Subsidiaries, taken as a whole, or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease lease, sublease, license or sublicense in the ordinary course of businessbusiness (and any related Disposition of improvements made to leased or sub-leased real property resulting therefrom), (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain condemnation, taking or condemnation proceedings (including in lieu thereof or any similar proceeding)event proceedings;
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions to the extent constituting a Disposition, the consummation of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)Transactions;
(q) Disposition Dispositions of any non-core assets (i) acquired in a connection with any acquisition or other investment similar Investment permitted hereunderhereunder and sales of Real Estate Assets acquired in any acquisition or similar Investment permitted hereunder which, which assets within 180 days of the date of such acquisition or Investment, are (x) designated in writing to the Administrative Agent as being held for sale and not used or useful in for the ordinary course or the principal business continued operation of the Borrower and or any of its Restricted Subsidiaries or any of their respective businesses; provided, that (yi) non-core assets or unnecessary immediately prior to the business or operations and after giving effect to such Disposition, no Event of the Borrower Default exists and its Restricted Subsidiaries or (ii) made in connection with the approval Net Proceeds of any applicable antitrust authority or otherwise necessary or advisable in such Disposition shall be applied and/or reinvested as (and to the good faith determination of the Borrower to consummate any acquisition permitted hereunderextent) required by Section 2.10(b)(ii);
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair market value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and or cross-licensing arrangements involving any technology, software or IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of any technology, software or IP Rights, or any issuances or registrations, or any applications for issuances or registrations, of any IP Rights, which, in the reasonable business judgment good faith determination of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, Subsidiaries or are no longer economical to maintain in light of its their use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries[reserved];
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities of any Employee Related Person of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Lawlaw;
(y) any merger, consolidation, amalgamation or Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary (other than the Borrower) in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value any Disposition of Capital Stock of any of the Borrower’s subsidiaries to members of the board of directors (or equivalent body otherwise named) of such subsidiary in order to qualify members of the board of directors of such subsidiary, if required by applicable law, so long as reasonably determined by the Borrower at the time will continue to own, directly or indirectly, not less than 80.0% of the relevant Dispositionissued and outstanding Capital Stock of such subsidiary; and
(bb) of other Dispositions in an aggregate amount not more than to exceed the greater of (i) $50,000,000 15,000,000 and 0.36(ii) 15.0% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereofPeriod.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor and it shall it not permit any of its Restricted Subsidiaries other Loan Party to, enter into any transaction of merger, consolidation merge or amalgamation, consummate a Division as the Dividing Personconsolidate, or liquidate, wind up wind‑up or dissolve themselves itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub‑lease (as lessor or sublessor), exchange, transfer or otherwise make dispose of, in one transaction or a series of transactions, all or any Disposition part of its business, assets or property of any assetskind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, except:
(a) (x) (i) any Restricted Subsidiary Guarantor may be mergedliquidated, consolidated wound up or amalgamated dissolved, with the result that its assets (including licenses), if any, and ongoing business are distributed to the Borrower or any other Subsidiary Guarantor, (ii) all or any part of any Subsidiary Guarantor’s business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to the Borrower or any other Subsidiary Guarantor or (iii) any Subsidiary Guarantor may be merged with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person ifGuarantor; provided, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a); provided that (A) in the case of any such merger, consolidation or amalgamation with or into merger involving the Borrower, (1) the Borrower shall be the continuing or surviving Person or (2y) so long as no Default or Event of Default exists or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that if the Person formed by or surviving any such merger, merger or consolidation or amalgamation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (xA) the Successor Borrower Company shall be an entity organized or existing under the law laws of the U.S.United States of America, any state State thereof or the District of Columbia, (yB) the Successor Borrower Company shall expressly assume all the Obligations obligations of the Borrower in under this Agreement and the other Loan Documents to which the Borrower is a manner party pursuant to a supplement hereto or thereto reasonably satisfactory to the Administrative Agent and the Collateral Agent, (zC) except as the Administrative Agent may otherwise agree, each Subsidiary Guarantor, unless it is the other party to such merger, consolidation or amalgamationSuccessor Company, shall have executed and delivered a reaffirmation agreement with respect confirmed that its Subsidiary Guaranty shall apply to its the Successor Company’s obligations under the Loan Guaranty Documents, (D) each Subsidiary Guarantor, unless it is the Successor Company, shall have, by a supplement to the Pledge and Security Agreement and other applicable Security Documents, confirmed that its obligations thereunder shall apply to its guarantee of the Successor Company’s obligations under the Loan Documents, (E) the Equity Pledgor shall have confirmed that the Equity Pledge Agreement 123 shall apply to the Successor Company’s obligations under the Loan Documents, (F) the Equity Pledgor shall have, by a supplement to the Equity Pledge Agreement and other applicable Security Documents, confirmed that its obligations thereunder shall apply to its guarantee of the Successor Company’s obligations under the Loan Documents, and (G) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel as to the enforceability of this Agreement, the Pledge and Security Agreement, the Subsidiary Guaranty, the Equity Pledge Agreement and the other Loan Security Documents as so supplemented and the perfection of the Liens under the Security Documents; it being understood and agreed provided, further, that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including conveyances, sales, leases, subleases, exchanges, transfers or other dispositions of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division)assets that do not constitute Asset Sales;
(ic) Asset Sales, the liquidation or dissolution proceeds of any Restricted Subsidiary if which (valued at the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that principal amount thereof in the case of any liquidation non‑Cash proceeds consisting of notes or dissolution other debt Securities and valued at fair market value in the case of any Loan Party that results in a distribution other non‑Cash proceeds), when aggregated with the proceeds of all other Asset Sales made during the term of this Agreement, are less than $20,000,000; provided (1) the consideration received for such assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as in an Investment and shall comply with Section 6.06 amount at least equal to the fair market value thereof (other than in reliance on clause (j) thereof); (ii) any merger or Division, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrowerapplicable Loan Party), (2) no less than 75% thereof shall be paid in Cash and/or Cash Equivalents, (3) in no event shall any such Asset Sale involve any Real Property (except as permitted pursuant to clauses (f) and property (g) below) or assets no longer used or useful materially and adversely affect the Loan Parties’ ability (x) if prior to the Completion Date, to develop, construct and operate the Project in accordance in all material respects with the ordinary course or Plans and Specifications and the principal business of the Borrower and its Restricted Subsidiaries) Loan Documents and (y) if on or after the leasing Casino Opening Date, to operate the Project as contemplated by the Loan Documents and (4) the Net Cash Proceeds thereof shall be applied as required by Section 2.13(a);
(d) the sale of past-due receivables for purposes of collection;
(e) conveyances, sales, leases, subleases, exchanges, transfers or subleasing other dispositions of real property equipment valued at not more than $500,000 in the aggregate in any Fiscal Year to employees of the Loan Parties in the ordinary course of business;
(ef) Dispositions the XXX Lease Agreement and other space leases or subleases of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment portions of the BorrowerReal Property owned or leased by the Loan Parties, is (A) no longer useful entered into by the applicable Loan Party in its business (or in accordance with the business provisions of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;Section 6.03(b); and
(g) Dispositionsthe dedication of Real Property or other sales, mergers, Divisions, amalgamations, consolidations assignments or conveyances that constitute dispositions of Real Property (w) Investments permitted including pursuant to Section 6.06 a lease or sublease and/or pursuant to amendment to the Ground Lease, the Entertainment Village Lease or the Golf Course Lease to reduce the Real Property subject thereto) not to exceed 30 acres of Real Property in the aggregate, so long as such dedications, sales, assignments and/or dispositions do not materially impair or interfere with, the operations (or intended use or operations) of the Project or the business operations of any Loan Party, do not relate to Real Property upon which the principal improvements related to the Project are located and no gaming or casino operations (other than Section 6.06(j)the operation of arcades and games for minors) may be 124 conducted on any Real Property that is subject to such dedications, sales, assignments and/or dispositions; provided that in order to accomplish the foregoing the Loan Parties may record, or cause to be recorded, lot line adjustments and/or subdivide the Real Property so long as (i) in the case of any such subdivision, such real property is subdivided such that it will represent a separate municipal tax parcel independent of the remainder of the Real Property of the Loan Parties, (ii) such lot line adjustment or subdivision does not render the remainder of the Real Property (or any portion thereof), or the operations thereon, as non-conforming under applicable zoning and land use ordinances, and does not otherwise result in the violation in any material respect of any applicable variances, special exceptions, conditional use approvals, covenants, conditions, restrictions or any other Legal Requirements or approvals to which the remainder of the Real Property (xor any portion thereof) Permitted Liens or the operations thereon or the Loan Parties are subject and (yiii) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market valuethe Loan Parties have received all necessary governmental approvals with respect to such lot line adjustment or subdivision, including from the Gaming Authorities; provided provided, further that with respect to any such Disposition involving assets with a purchase price dedications, sales, assignments and/or dispositions (A) the remaining Real Property and/or the Loan Parties have been given all easements and other rights-of-way across any Real Property so dedicated, sold, assigned or otherwise disposed of as necessary or, in excess the reasonable determination of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as Borrower, desirable for the continued operations of the last day Project, including legal and physical access to public rights of the most recently ended Test Period calculated on a Pro Forma Basisway and with respect to utilities, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents ingress and egress and fire and safety access and (provided that for purposes of the 75% Cash consideration requirement, (wB) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated Collateral Agent shall have received affirmative endorsements to the Obligations or that are owed title insurance policies with respect to the Borrower remaining Real Property 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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Periodevidence, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists case in form and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and substance reasonably satisfactory to the extent) required by Section 2.11(b)(ii);
(i) to Administrative Agent, confirming that the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds Lien of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements Mortgages and similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business coverage of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) title insurance policies with respect to facilities that are temporarily the remaining Real Property have not in usebeen impaired by such dedication, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition sale, assignment or other investment permitted hereunderdisposition and/or lot line adjustment or subdivision, which assets are as the case may be (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Partyand, to the extent the assets received do not constitute an Excluded Assetamendment, modification or other supplement to any Mortgage is required with respect thereto, including for purposes of amending legal descriptions attached to any Mortgage, the Administrative Agent has a perfected Lien with shall direct (without the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights consent of the Borrower or any Restricted Subsidiary in Lenders) the ordinary course of business and (ii) DispositionsCollateral Agent to make such amendments, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness modifications or other Securities of, Unrestricted Subsidiaries;
supplements thereto (w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood that any such amendments, modifications or other supplements must be in form and agreed that substance reasonably satisfactory to the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereofAgent)).
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Lead Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Lead Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the US Borrower, (1A) the US Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the US Borrower (any such Person, the “US Successor Borrower”), (x) the US Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the US Successor Borrower shall expressly assume the Obligations of the US Borrower in a manner reasonably satisfactory to the Administrative Agent and concurrently with the consummation of such merger, consolidation or amalgamation, 100% of the Capital Stock of the US Successor Borrower shall be pledged to the Administrative Agent for the benefit of the Secured Parties and (z)
(1) except as the Administrative Agent may otherwise agree, each applicable Subsidiary Guarantor, unless it is the other party to such merger, consolidation or
(1) except as the Administrative Agent may otherwise agree, each applicable Subsidiary Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan DocumentsDocuments and (2) upon its reasonable request, the Administrative Agent shall have received customary legal opinions; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Canadian Successor Borrower will succeed to, and be substituted for, the applicable Canadian Borrower under this Agreement and the other Loan Documents, and (Biii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the guarantee obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Lead Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for Fair Market Value with at least 75% of the consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (including ii) treated as a result an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof); provided, further, that the Lead Borrower shall deliver an updated Borrowing Base Certificate at any time the amount of a Division)assets Disposed of pursuant to this clause (b) reduces the Borrowing Bases by more than $20,000,000;
(i) the liquidation or dissolution of any Restricted Subsidiary (other than the Canadian Borrower) if the Lead Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Lead Borrower, is not materially disadvantageous to the Lenders and the Lead Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Lead Borrower or any Restricted Subsidiary may be converted into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Lead Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Lead Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market valueFair Market Value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 135,000,000 and 0.3540.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisAdjusted EBITDA, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided Equivalents; provided, that for purposes of the 75% Cash consideration requirement, (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 Lead Borrower or any Restricted Subsidiary) of the Lead Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets and for which the Lead 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 assets acquired in connection with such Disposition, (y) any Securities received by the Lead 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 one hundred eighty (180) days following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 135,000,000 and 0.7540.0% of Consolidated Total Assets as of the last day of the most recently ended Test PeriodAdjusted EBITDA, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists shall exist and (y) an updated Borrowing Base Certificate shall be delivered to the Net Proceeds of Administrative Agent to the extent such Disposition shall causes the Borrowing Base to be applied and/or reinvested as (and to the extent) required reduced by Section 2.11(b)(ii)greater than $20,000,000;
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable (i) in the ordinary course of business (including any discount and/or forgiveness thereof), (ii) together with any related Permitted Receivables Facility Assets, pursuant to any Permitted Receivables Facility or (iii) in connection with the collection or compromise thereofof any of the foregoing;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), which (i) the Disposition or termination of which will do not materially interfere with the business of the Lead Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in connection with the ordinary course of business (as determined in good faith by the Borrower)Transactions;
(q) Disposition Dispositions of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made acquired in connection with the approval any acquisition permitted hereunder and sales of any applicable antitrust authority or otherwise necessary or advisable Real Estate Assets acquired in the good faith determination of the Borrower to consummate any acquisition permitted hereunder; provided that no Event of Default exists on the date on which the definitive agreement governing the relevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Lead Borrower) for like property or assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets property received do does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved]Dispositions set forth on Schedule 6.07(s);
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Lead Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the Lead Borrower, are not material to the conduct of the business of the Lead Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Lead Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority agency of the U.S. Federal government, any state, authority or other regulatory body or any applicable Requirement of Law;
(y) any merger, amalgamation, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S., (ii) any Canadian Loan Party in the U.S. or Canada and/or (iiiii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by Fair Market Value in the Borrower at the time of the relevant Disposition) aggregate in any Fiscal Year of not more than the greater of $50,000,000 120,000,000 and 0.3635.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis Adjusted EBITDA, which if not used in any Fiscal Year, which, if not used in such Fiscal Year, shall may be carried forward to succeeding subsequent Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its the Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value (as determined in good faith by the Borrower) in excess of $13,000,000, in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall (x) expressly assume all of the Secured Obligations of the Borrower under each of the Loan Documents pursuant to documents and in a manner reasonably satisfactory to the Administrative Agent (and the Successor Borrower shall have provided customary certificates, board resolutions, customary legal opinions and other customary documents with respect to such assumption, if and to the extent reasonably requested by, and reasonably satisfactory to the Administrative Agent), and (y) such Successor Borrower shall become a “Borrower” and the “Company” hereunder and (z) except as the Administrative Agent may otherwise agree, each other Borrower and each Loan Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under this Agreement, if applicable, the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into any Loan Guarantor or the Borrower or (other than any Subsidiary Guarantorsuch transaction involving 144 the Borrower, which shall be subject to the terms of clause (i) above), either (1x) a Loan Guarantor or the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the relevant Loan Guarantor or Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.066.04;
(b) Dispositions (including of Capital Stock) among the Borrower and/or or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as determined in good faith by such Person) with at least 75.0% of the consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition and no Event of Default shall then exist or immediately result therefrom or (ii) treated as an Investment and otherwise constitute a result Permitted Investment (other than a Permitted Investment of a Divisionthe type described in clause (j) of the definition thereof) or be made in compliance with Section 6.04(a);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any a Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 either be a Permitted Investment (other than a Permitted Investment of the type described in reliance on clause (j) of the definition thereof) or be made in compliance with Section 6.04(a); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under constituting a Permitted Investment or made in compliance with Section 6.066.04(a); and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other equipment, raw or scrap materials or immaterial assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property property, in the ordinary course of business, or other property that, in the reasonable judgment good faith determination of the Borrower, is (A) no longer useful in its business (or in the business of the Borrower or any Restricted Subsidiary of the BorrowerSubsidiary) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or or Cash Equivalents and/or or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) (i) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Permitted Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)a Permitted Investment of the type described in clause (j) of the definition thereof), (x) Permitted Liens and (y) Liens, Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and (ii) Sale and Lease-Back Transactions permitted by Section 6.08;
(h) Dispositions for fair market valuevalue (as determined in good faith by the Borrower); provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 33,000,000 and 0.358.0% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 7575.0% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (Equivalents; provided that that, for purposes of the 7575.0% Cash consideration requirement, (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 in the notes thereto)) that are assumed by the transferee of any such assets and for which the Borrower and/or 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.,
Appears in 1 contract
Fundamental Changes; Disposition of Assets. (a) The Borrower shall will not, nor shall it and will not permit any of its Restricted Subsidiaries Subsidiary to, enter into any transaction of merger, consolidation merge or amalgamation, consummate a Division as the Dividing Personconsolidate, or liquidate, wind wind-up or dissolve themselves itself (or suffer any liquidation or dissolution), or sell, transfer, lease or otherwise make dispose of all or any Disposition part of its assets (including any assetsEquity Interest owned by the Borrower or any Subsidiary), whether now owned or hereafter acquired, leased or licensed, except:
(a) (i) any Restricted Subsidiary (other than the IP Subsidiary) may be merged, consolidated or amalgamated with or merge into the Borrower or any other Restricted Subsidiary and in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Person may merge into or consolidate with any Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(athe IP Subsidiary) in a transaction in which the surviving entity is a Subsidiary (and, if any party to such merger or consolidation is a Guarantor Subsidiary, is a Guarantor Subsidiary); provided that (A) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1) the Borrower shall be the continuing or surviving Person or (2) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1) the Borrower or involving a Subsidiary Guarantor Person that is not a Credit Party immediately prior thereto shall not be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2) the relevant transaction shall be treated as an Investment and shall comply with permitted unless it is also permitted by Section 6.066.6;
(biii) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation other than the IP Subsidiary) may liquidate or otherwise) (including as a result of a Division);
(i) the liquidation or dissolution of any Restricted Subsidiary dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, Borrower and is not materially disadvantageous to the Lenders and Lenders;
(iv) any Subsidiary (other than the IP Subsidiary) may merge or consolidate with any Person (other than the Borrower or any Restricted Subsidiary receives any assets of Subsidiary), and may dissolve or liquidate, in each case if the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Division, amalgamation, dissolution, liquidation or consolidation, the sole purpose of which thereof is to effect (A) any Disposition a sale, transfer or other disposition of assets otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any6.8;
(dv) (x) Dispositions sales, transfers and other dispositions of obsolete, damaged or worn out property or assets, inventory, used, obsolete or surplus equipment and or other assets in the ordinary course of business (as determined in good faith by business, dispositions of Cash and Cash Equivalents and the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property abandonment or other disposition of Intellectual Property or other intangible property thatthat is, in the reasonable judgment of the Borrower, is (A) no longer economically practicable to maintain or useful in its business (or in the conduct of the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintainBorrower and the Subsidiaries, taken as a whole;
(fvi) Dispositions of Cash and/or Cash Equivalents and/or sales, transfers, leases and other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 dispositions to the Borrower or any Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Subsidiary that is not a Credit Party shall be made in compliance with Sections 6.6 and 6.10;
(vii) leases, licenses or other licensing arrangements of real or personal property in the ordinary course of business and not interfering in any material respect with the ordinary conduct of or materially detracting from the value of the business of the Borrower and the Subsidiaries, taken as a whole;
(viii) sales, transfers or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement other dispositions of financial position (or in 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 assets acquired accounts receivable in connection with such Dispositionthe compromise or collection thereof in the ordinary course of business and not as part of any accounts receivables financing transaction;
(ix) sales, (y) any Securities received transfers, leases or other dispositions by the Borrower or any Restricted Subsidiary from such transferee of assets (including Equity Interests) that were acquired after the Closing Date in any Permitted Acquisition made in reliance on Section 6.6(a)(x) or any Investment made in reliance on Section 6.6(a)(xviii) or 6.6(a)(xix) (or acquired prior to the Closing Date pursuant to the comparable provisions of the Existing Credit Agreement and set forth on Schedule 1.1 hereto) that are converted by such Person into Cash ancillary or Cash Equivalents (incidental to the extent Borrower’s or the Subsidiaries’ purpose in consummating such Permitted Acquisition or Investment or are required to be disposed of under applicable law in connection with the consummation of such Permitted Acquisition or Investment; provided that any such sale, transfer, lease or other disposition shall be made within two years 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 in respect date of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) Permitted Acquisition or Investment; provided that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition thereof shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii2.13(a);
(ix) sales, transfers or other dispositions of assets set forth in Schedule 6.8; provided that the Net Proceeds thereof shall be applied as required by Section 2.13(a);
(xi) dispositions of assets subject to any casualty or condemnation proceeding (including in lieu thereof);
(xii) dispositions of property to the extent that (iA) the relevant such property is exchanged for credit against the purchase price of similar replacement property or (iiB) the proceeds of the relevant Disposition such disposition are promptly applied to the purchase price of such replacement property;
(jxiii) Dispositions (A) dispositions in the form of investments Liens permitted by Section 6.2 and (B) dispositions in joint ventures the form of Investments made in reliance on Section 6.6(a)(xviii) or 6.6(a)(xix), provided that, after giving effect to any such disposition under this clause (B), the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangementsaggregate amount of such Investments shall not exceed $75,000,000;
(kxiv) Dispositions sales, transfers, leases and other dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or real property and related assets acquired in connection with the collection relocation of directors, officers or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business employees of the Borrower and its Restricted the Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(nxv) Dispositions voluntary terminations of property subject to foreclosure, casualty, eminent domain Hedge Agreements;
(xvi) sales and transfers of any fixed or condemnation proceedings (including capital assets made within 270 days of the acquisition thereof as part of a Sale/Leaseback Transaction resulting in lieu thereof or any similar proceedinga Capital Lease Obligation permitted by Section 6.1(g);
(oxvii) Dispositions sales, transfers and other dispositions of Equity Interests in any Person that is not a Subsidiary pursuant to the Organizational Documents of such Person or consignments any related joint venture, shareholders or similar agreement; provided that (A) the consideration received therefor shall be in an amount at least equal to the fair value thereof, (B) no less than 75% of equipmentthe consideration received therefor shall be in the form of Cash and (C) the Net Proceeds thereof shall be applied as required by Section 2.13(a); and
(xviii) sales, inventory or transfers, leases and other dispositions of assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
permitted by any other clause of this Section 6.8(a); provided that (pA) Dispositions of Real Estate Investments in the ordinary course of business aggregate fair value (as determined in good faith by the Borrowerboard of directors of the Borrower (or similar governing body) of all assets sold, transferred, leased or otherwise disposed of in reliance on this clause (xviii) shall not exceed $200,000,000 in the aggregate since the Closing Date, (B) the consideration received therefor shall be in an amount at least equal to the fair value thereof, (C) no less than 75% of the consideration received therefor shall be in the form of Cash and (D) the Net Proceeds thereof shall be applied as required by Section 2.13(a).
(b) Notwithstanding anything to the contrary set forth herein, the Borrower will not, and will not permit any Subsidiary to:
(i) sell, transfer or otherwise dispose of any Cox Intercompany Note;
(qii) Disposition sell, transfer, lease or otherwise dispose of, or license or sublicense (as a licensor or sublicensor) any Material Intellectual Property Asset, other than grants of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets outbound licenses of Material Intellectual Property Assets that are (x) non-exclusive and do not used or useful materially detract from the value of the affected asset in the hands of the Borrower and the Subsidiaries, or interfere in any material respect with the ordinary course or the principal conduct of business of the Borrower and its Restricted the Subsidiaries taken as a whole, or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights of require the Borrower or any Restricted Subsidiary to obtain any license of or other right to use Material Intellectual Property Assets from the licensee in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material order to the continue to conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its usesuch business;
(uiii) terminations sell, transfer or unwinds dispose of Derivative Transactions;any Equity Interests in the IP Subsidiary; or
(viv) Dispositions sell, transfer or otherwise dispose of Capital Stock ofany Equity Interests in TPIH, other than any redemption thereof by TPIH in accordance with the terms of the TPIH Stockholders Agreement so long as (A) at the time thereof and after giving effect thereto, no Default or sales Event of Indebtedness or other Securities ofDefault shall have occurred and be continuing and such redemption has not resulted, Unrestricted Subsidiaries;and could not reasonably be expected to result, in a Material Adverse Effect and (B) concurrently with the effectiveness of such redemption, the IP Subsidiary shall have obtained ownership rights of all the intellectual property licensed by the Borrower and any of its Subsidiaries under the Trader License Agreement.
(wc) [reserved];
(x) Dispositions made Notwithstanding anything to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any mergerthe contrary set forth herein, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time will not, and will not permit any Subsidiary to, sell, transfer or otherwise dispose of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis any Equity Interests in any Fiscal YearSubsidiary unless (A) immediately after giving effect to such transaction, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would and the Subsidiaries shall be in compliance with Section 6.13(a6.6 and (ii) on a Pro Forma Basisthe Borrower will not permit any Subsidiary to issue any additional Equity Interest in such Subsidiary, other than (A) to the Borrower or any Disposition Subsidiary in compliance with Section 6.6, (B) directors’ qualifying shares and (C) other nominal amounts of Securitization Assets Equity Interests that are required to a Securitization Subsidiarybe held by other Persons under applicable law); provided, provided that the Borrower may permit any Subsidiary to make other issuances of additional Equity Interests in such Disposition shall be for no less than Subsidiary to any Person if the fair market value Borrower (if it is the parent company of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To other Subsidiary (if such other Subsidiary is the extent that any Collateral is Disposed parent company of as expressly such Subsidiary) would otherwise be permitted by under this Section 6.07 6.8 to dispose of such Equity Interests (assuming such Equity Interests were issued to the Borrower or any Person other than a Loan PartySubsidiary in compliance with Section 6.6) to such Person, and such Collateral issuance shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of deemed to constitute such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereofa disposal for purposes hereof (including clause (i) above).
Appears in 1 contract
Samples: Credit and Guarantee Agreement (AutoTrader Group, Inc.)
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition Disposition, in a single transaction or in a series of any assetsrelated transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the guarantee obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary or change in form of entity if the Borrower determines in good faith that such liquidation or dissolution or change in form of entity is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary may be converted into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used obsolete or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Liens, Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and Sale and Lease-Back Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 2,000,000 and 0.353.0% of Consolidated Total Assets Adjusted EBITDA of the Borrower and its Restricted Subsidiaries as of the last day of the most recently ended Test Period calculated on a Pro Forma Basisfor which financial statements have been or were required to be delivered pursuant to Sections 5.01(a) or (b), as applicable, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 $ 3,500,000 and 0.756.0% of Consolidated Total Assets Adjusted EBITDA of the Borrower and its Restricted Subsidiaries as of the last day of the most recently ended Test PeriodPeriod for which financial statements have been or were required to be delivered pursuant to Sections 5.01(a) or (b), as applicable, in each case, shall be deemed to be Cash)); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists shall exist and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures Joint Ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture Joint Venture or similar parties set forth in joint venture the relevant Joint Venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), which (i) the Disposition or termination of which will do not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)[reserved];
(q) Disposition Dispositions of any non-core assets (i) acquired in a connection with any acquisition or other investment permitted hereunderhereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, which assets within 90 days of the date of such acquisition, are (x) designated in writing to the Administrative Agent as being held for sale and not used or useful in for the ordinary course or the principal business continued operation of the Borrower and or any of its Restricted Subsidiaries or any of their respective businesses; provided that (yi) non-core assets or unnecessary the Net Proceeds received in connection with any such Disposition shall be applied and/or reinvested as (and to the business or operations of the Borrower extent required) by Section 2.11(b)(ii) and its Restricted Subsidiaries or (ii) made in connection with no Event of Default exists on the approval of any applicable antitrust authority or otherwise necessary or advisable in date on which the good faith determination of definitive agreement governing the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like property or assets; provided that, that (i) upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets property received do does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swappedswapped and (ii) any Net Proceeds received as “cash boot” in connection with any such transaction shall be applied and/or reinvested as (and to the extent required) by Section 2.11(b)(ii);
(s) [reserved];
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrower or any Restricted Subsidiary in which do not materially interfere with the ordinary course business of business the Borrower and any Restricted Subsidiary and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority agency of the U.S. Federal government, any state, authority or other regulatory body or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction state in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdictionU.S.;
(z) [reserved];
(aa) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aabb) other Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) in the aggregate since the Closing Date of not more than the greater of $50,000,000 2,000,000 and 0.363.0% of Consolidated Total Assets Adjusted EBITDA of the Borrower and its Restricted Subsidiaries as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Yearfor which financial statements have been or were required to be delivered pursuant to Sections 5.01(a) or (b), which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faithapplicable; and
(cc) Dispositions contemplated on the Closing Date and described on Schedule 6.07 hereto. Notwithstanding anything to the contrary set forth in the Loan Documents, no IP Rights that are material to the business of the Loan Parties in the aggregate licensed or owned by any Disposition of Securitization Assets Loan Party may be Disposed by any Loan Party to any non-Loan Party (other than the licensing of IP Rights from a Loan Party to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financingnon-Loan Party otherwise permitted hereunder). To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall automatically be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereofforegoing.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower shall will not, nor shall will it permit any of its Restricted Subsidiaries Subsidiary to, enter into (i) consummate any transaction of merger, consolidation merger or amalgamation, consummate a Division as the Dividing Personconsolidation, or liquidate, wind wind-up or dissolve themselves itself (or suffer any liquidation or dissolution), (ii) convey, sell, lease, exchange, transfer or otherwise make dispose of, in one transaction or a series of transactions, all or any Disposition part of its business, assets or property of any assetskind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired or leased or (iii) sell, assign or otherwise dispose of any Capital Stock of any Subsidiary, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into of the Borrower may merge or any other Restricted Subsidiary and consolidate with the Borrower (ii) any Restricted Subsidiary may consummate including a Division as the Dividing Person if, immediately upon the consummation of the Divisionmerger, the assets purpose of which is to reorganize the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in Borrower into a Disposition permitted by Section 6.07 (other than Section 6.07(anew jurisdiction); provided that (A) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1x) the Borrower shall be the continuing or surviving Person and (y) such merger or (2) if the Person formed by or surviving any such merger, consolidation or amalgamation is does not result in the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall ceasing to be an entity organized or existing under the law Laws of the U.S.United States, any state State or Commonwealth thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division);
(i) any Non-Credit Party may merge or consolidate with or into any other Person that is, or if it is the liquidation surviving Person, becomes a Non-Credit Party, (ii) any Subsidiary may merge or dissolution consolidate with or into any other Person that is, or if it is the surviving Person, becomes, a Credit Party, (iii) any merger or consolidation the sole purpose of which is to reincorporate or reorganize (x) a Credit Party in another jurisdiction in the United States or (y) a Non-Credit Party in another jurisdiction shall be permitted, (iv) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such liquidation or dissolution action is in the best interests of the Borrower, Borrower and the Subsidiaries and is not materially disadvantageous to the Lenders Lenders, provided, in the case of clauses (ii) through (iv), that (A) no Change of Control shall result therefrom and (B) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Subsidiary that is a Guarantor) shall be a Credit Party;
(c) any Subsidiary may dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted other Subsidiary; provided that in the case a Guarantor Subsidiary may not dispose of any liquidation all or dissolution substantially all of any Loan Party that results in a distribution of its assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be Non-Credit Party unless treated as an Investment and shall comply with that is permitted by Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Division, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;6.6.
(d) conveyances, sales, leases, licenses, exchanges, transfers or other dispositions that do not constitute Asset Sales;
(xe) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other Asset Sales; provided that (i) the consideration received for such assets is in an amount at least equal to the ordinary course of business fair market value thereof (as determined in good faith by the management of the Borrower), (ii) no less than 75% of which will paid in cash or Cash Equivalents, and property (iii) the Net Cash Proceeds thereof are applied as and to the extent required by Section 2.14(a); provided, further that for the purposes of clause (ii), (A) any liabilities (as shown on the Borrower’s most recent balance sheet provided hereunder or assets no longer used or useful in the ordinary course or the principal business footnotes thereto) of the Borrower and its Restricted Subsidiaries) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (w) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are by their terms subordinated to the Obligations or that are owed to the Borrower or any Restricted Subsidiary) payment in cash of the Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) Obligations, that are assumed by the transferee of any with respect to the applicable Asset Sale or otherwise terminated or cancelled in connection with such assets Asset Sale and for which the Borrower and/or its applicable Restricted Subsidiary and all of the Subsidiaries shall have been validly released by all relevant applicable 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, (yB) any Securities securities, notes or other obligations or assets received by the Borrower or any Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by such Person the Borrower or a Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the Cash cash or Cash Equivalents received) ), in each case within 180 days following the closing of such Asset Sale, (C) Indebtedness of any Subsidiary that ceases to be a Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the applicable Disposition Borrower or a Subsidiary), to the extent that the Borrower and each other Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale; and (zD) any Designated Non-Cash Consideration received in respect of such Disposition Asset Sale having an aggregate fair market valuevalue as reasonably determined by the Borrower in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (zD) that is at that time outstanding, not in excess of the greater of (x) $105,000,000 75,000,000 and 0.75(y) an amount equal to 15% of LTM Consolidated Total Assets as Adjusted EBITDA at the time of the last day receipt of such Designated Non-Cash Consideration, with the most recently ended Test Period, 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 each casevalue, shall be deemed to be Cash)cash; providedprovided further that the Borrower and the Subsidiaries may not sell all or substantially all of their assets, furthertaken as a whole, that to any Person in reliance on this clause (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(iie);
(if) the Borrower and the 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 except to the extent permitted by Section 6.1(d);
(g) any transaction (other than an Asset Sale (determined without regard to the exceptions thereto in the definition thereof)) in connection with a Permitted Acquisition or other Investment permitted by Section 6.6; provided that (i) if the relevant property merging or consolidating Subsidiary is exchanged for credit against a Guarantor Subsidiary, the purchase price of similar replacement property surviving entity is or becomes a Guarantor Subsidiary or (ii) if the proceeds of merging or consolidating Credit Party is the relevant Disposition are promptly applied to Borrower, the purchase price of such replacement propertysurviving entity is the Borrower;
(j) Dispositions of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (ih) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (iiincluding Capital Stock) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien hereunder in accordance with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved]applicable regulatory requirements;
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights dispositions of Investments in Joint Ventures or Joint Venture Subsidiaries to the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rightsextent required by, or issuances or registrationspursuant to, or applications for issuances or registrations, of IP Rights, which, customary agreements between the joint venture parties set forth in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in binding agreements between such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faithparties; and
(ccj) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financingthe Acquisition may be consummated on the Closing Date. To the extent that any Collateral is Disposed disposed of as expressly permitted by this Section 6.07 6.8 to any Person other than that is not a Loan Credit Party, such Collateral shall be sold free and clear of the Liens created by the Loan Credit Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent or the Collateral Agent, as applicable, shall, and shall be authorized to taketo, and shall take, take any actions deemed appropriate in order to effect effectuate the foregoing in accordance with Article 8 hereofforegoing.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Lumentum Holdings Inc.)
Fundamental Changes; Disposition of Assets. The Other than the Transactions, the Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value in excess of $7,500,000 in a single transaction or a series of related transactions or in excess of $15,000,000 in the aggregate for such transactions in any Fiscal Year (including, in each case, pursuant to a Delaware LLC Division), except:
(a) (i) the Borrower or any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiariesif applicable, such effect a Delaware LLC Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a); provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower or Delaware LLC Division relating to the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation consolidation, amalgamation or amalgamation Delaware LLC Division is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S.US, any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger merger, consolidation, amalgamation or Division, consolidation or amalgamation Delaware LLC Division with or into the Borrower or any Subsidiary Guarantor, either (1A) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person (or, in the case of an amalgamation, the Person formed as a result thereof) shall expressly assume the obligations of the Borrower or such Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2B) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(c) (i) the liquidation liquidation, dissolution or dissolution Delaware LLC Division of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation liquidation, dissolution or dissolution Delaware LLC Division is in the best interests of the Borrower, is not materially disadvantageous to the Lenders (taken as a whole) and the Borrower or any Restricted Subsidiary receives any the assets (if any) of the relevant liquidated, dissolved or liquidated divided Restricted Subsidiary; provided that in the case of any liquidation liquidation, dissolution or dissolution Delaware LLC Division of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation liquidation, consolidation or consolidationDelaware LLC Division, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.066.06 (other than Section 6.06(j)); and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property equipment or assets, inventory, equipment and other immaterial assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and Liens, (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and (z) Sale and Leaseback Transactions in an amount not to exceed equal to the greater of $15,000,000 and 15% of Consolidated Adjusted EBITDA for the most recently ended Test Period;
(h) Dispositions for fair market valuevalue (other than any intellectual property that is material to the business of the Loan Parties); provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 15,000,000 and 0.3515% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period calculated on a Pro Forma Basis(other than any Permitted Asset Swap), at least 75% of the consideration for such Disposition (other than the portion of any such Disposition consisting of a Permitted Asset Swap) shall consist of Cash or Cash Equivalents (provided Equivalents; provided, further, that for purposes of the 75% Cash consideration requirement, requirement at:
(wi) 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 in the notes thereto)) that are assumed by the transferee of any such assets (or that are otherwise terminated or cancelled in connection with the transaction with such transferee) and for which the Borrower and/or its applicable Restricted Subsidiary have been validly released by all relevant creditors in writing, ,
(xii) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, ,
(yiii) any Securities Security received by the Borrower or any Restricted Subsidiary from such transferee that are is 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 Disposition, and
(ziv) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (ziv) that is at that time outstanding, not in excess of the greater of $105,000,000 20,000,000 and 0.7520% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period, in each case, shall be deemed to be Cash); and provided, further, that (xA) on the date on which the agreement governing immediately prior to and after giving effect to such Disposition is executedDisposition, no Event of Default under Section Sections 7.01(a), (f7.01(f) or (g7.01(g) then exists and (yB) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions Dispositions, discounting or forgiveness of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness to insurers which have provided insurance as to the collection thereof) or in connection with the collection or compromise thereofthereof (including sales to factors);
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries (taken as a whole) or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions to the extent constituting a Disposition, the consummation of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)Transactions;
(q) Disposition Dispositions of any non-core assets (i) acquired in a connection with any acquisition or other investment Investment permitted hereunderhereunder and sales of Real Estate Assets acquired in any acquisition or other Investment permitted hereunder which, which assets within 90 days of the date of such acquisition or other Investment, are (x) designated in writing to the Administrative Agent as being held for sale and not used or useful in for the ordinary course or the principal business continued operation of the Borrower and or any of its Restricted Subsidiaries or any of their respective businesses; provided that no Event of Default exists on the date on which the definitive agreement governing the relevant Disposition is executed and no Event of Default under Sections 7.01(a), (yf) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (iig) made in connection with exists at the approval time of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereundersuch Disposition;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved]so long as no Event of Default exists on the date on which the definitive agreement governing the relevant Disposition is executed and no Event of Default under Sections 7.01(a), (f) or (g) exists at the time of such Disposition, Dispositions of assets that do not constitute Collateral (including Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries) for fair market value;
(i) Dispositions, licensing, sublicensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business business, and (ii) Dispositionsthe Disposition, abandonmentsabandonment, cancellations cancellation or lapses lapse of IP Rights, or any issuances or registrations, or applications for issuances or registrations, of any IP Rights, which, in the reasonable business judgment good faith determination of the Borrower, Borrower are not material to the conduct of the business of the Borrower or and/or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations Dispositions in connection with the termination or unwinds unwind of Derivative TransactionsTransactions or Banking Services Obligations;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries[reserved];
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of LawLaw (including as a condition to, or in connection with, the consummation of the Transactions);
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Restricted Subsidiary in another jurisdiction in the U.S. US and/or (ii) any Foreign Subsidiary in the U.S. US or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions for fair market value involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) in any Fiscal Year of not more than the greater of $50,000,000 10,000,000 and 0.3610% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as Dispositions in connection with reorganizations and/or restructurings and/or activities related to tax planning (including in each case in connection with, or in preparation for, a Qualifying IPO); provided that such activities (x) do not result in any Capital Stock of the Borrower would be or any Guarantor not constituting Collateral and (y) do not adversely affect in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than material respect the fair market value of such property at the time Loan Guaranty or the value, perfection or priority of such Disposition the Collateral, in each case, taken as determined by the Borrower in good faitha whole; and
(cc) any Disposition Dispositions of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. the closing or sale of an office in the ordinary course of business of the Borrower and the Restricted Subsidiaries, which consist of leasehold interests in the premises of such office, the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such office; provided, that as to each and all such sales and closings, (i) on the date on which such Disposition is consummated, no Event of Default shall result and (ii) such sale shall be on commercially reasonable prices and terms in a bona fide arm’s-length transaction; To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party6.07, such Collateral shall be sold Disposed of free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate reasonably requested by the Borrower in order to effect the foregoing foregoing; provided, that in accordance with Article 8 hereofthe case of a Disposition to a Loan Party, the transferee Loan Party shall cause the relevant assets Disposed to it to become part of its Collateral.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower shall will not, nor shall will it permit any of its Restricted Subsidiaries Subsidiary to, (x) enter into any transaction of merger, consolidation merger or amalgamation, consummate a Division as the Dividing Personconsolidation, or liquidate, wind wind-up or dissolve themselves itself (or suffer any liquidation or dissolution), (y) convey, sell, lease, exchange, transfer or otherwise make dispose of, in one transaction or a series of transactions, all or any Disposition part of its business, assets or property of any assetskind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired or leased or (z) sell, assign, or otherwise dispose of any Capital Stock of any Subsidiary, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into of the Borrower may merge or any other Restricted Subsidiary and consolidate with the Borrower (ii) any Restricted Subsidiary may consummate including a Division as the Dividing Person if, immediately upon the consummation of the Divisionmerger, the assets purpose of which is to reorganize the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in Borrower into a Disposition permitted by Section 6.07 (other than Section 6.07(anew jurisdiction); provided that the Borrower may merge or consolidate with another Person (A) in the case of any such including a merger, consolidation or amalgamation with or the purpose of which is to reorganize the Borrower into the Borrower, a new jurisdiction); provided further that:
(1i) the Borrower shall be is the continuing surviving person or surviving Person or (2) if the Person formed by or surviving any such merger, consolidation or amalgamation conversion (if other than the Borrower) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is not the Borrower (any such Persona corporation, the “Successor Borrower”), (x) the Successor Borrower shall be an entity partnership or limited liability company organized or existing under the law laws of the U.S., any state thereof in the United States of America (the Borrower or such Person, as the District of Columbiacase may be, being herein called the “Successor Company”);
(yii) the Successor Borrower shall Company (if other than the Borrower) expressly assume assumes all the Obligations of the Borrower under this Agreement and any other Credit Document to which the Borrower is a party pursuant to documents or instruments in a manner form reasonably satisfactory to the Administrative Agent and Agent;
(ziii) except as if the Administrative Agent may otherwise agreeSuccessor Company is not the Borrower, each Guarantor, unless it is the other party to such merger, consolidation merger or amalgamationconsolidation, shall (A) have executed confirmed, pursuant to documents reasonably satisfactory to the Administrative Agent, that its Guaranty shall apply to the Successor Company’s Obligations under the Credit Documents and (B) shall have by a supplement or amendment (or such other document reasonably satisfactory to the Collateral Agent) to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Company’s Obligations under the Credit Documents;
(iv) immediately after giving pro forma effect to such transaction, no Default shall have occurred and be continuing;
(v) the Successor Company (if not the Borrower) shall have delivered to the Administrative Agent an officer’s certificate stating that such consolidation, merger or transfer and such amendments (if any) comply with this Agreement and any other Credit Document to which the Borrower is a reaffirmation agreement party; and
(vi) if the Successor Company is not the Borrower, prior to such merger or consolidation, the Administrative Agent shall have received all documentation and other information with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Company required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act to the extent requested by any Lender from the Borrower at least ten (10) Business Days prior to such merger or consolidation; provided that the Administrative Agent shall have been informed of the identity of such Successor Company at least twenty (20) Business Days prior to such merger or consolidation. The Successor Company (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement Agreement, any other Credit Document to which the Borrower is a party and the other Loan DocumentsLoans, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into event the Borrower or shall be automatically released and discharged from its obligations under this Agreement, any Subsidiary Guarantor, either (1) other Credit Document to which the Borrower or is a Subsidiary Guarantor shall be party and the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;Loans.
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division);
(i) any Non-Credit Party may merge or consolidate with or into any other Non-Credit Party, (ii) any Subsidiary may merge or consolidate with or into any other Subsidiary that is a Credit Party, (iii) any merger the liquidation sole purpose of which is to reincorporate or dissolution of reorganize a Credit Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such liquidation or dissolution action is in the best interests of the Borrower, Borrower and the Subsidiaries and is not materially disadvantageous to the Lenders Lenders, provided, in the case of clauses (ii) through (iv), that (A) no Change of Control shall result therefrom and (B) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Subsidiary that is a Guarantor) shall be a Credit Party;
(c) any Subsidiary may dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted other Subsidiary; provided that in the case a Guarantor Subsidiary may not dispose of any liquidation all or dissolution substantially all of any Loan Party that results in a distribution of its assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be Non-Credit Party unless treated as an Investment and shall comply with that is permitted by Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Division, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;6.6.
(d) the Borrower and the Subsidiaries may convey, sell, lease, license, exchange, transfer or otherwise dispose of assets or properties in a manner that does not constitute an Asset Sale;
(xe) Dispositions the Borrower and the Subsidiaries may consummate Asset Sales so long as no Default or Event of obsolete, damaged or worn out property or assets, inventory, equipment Default has occurred and other is continuing; provided that (i) the consideration received for such assets is in an amount at least equal to the ordinary course of business fair market value thereof (as determined in good faith by the management of the Borrower), (ii) no less than 75% of which will paid in cash (which may include royalties and property milestones) and (iii) the Net Cash Proceeds thereof are applied as and to the extent required by Section 2.14(a); provided further that for the purposes of clause (ii), (A) any liabilities (as shown on the Borrower’s most recent balance sheet provided hereunder or assets no longer used or useful in the ordinary course or the principal business footnotes thereto) of the Borrower and its Restricted Subsidiaries) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (w) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are by their terms subordinated to the Obligations or that are owed to the Borrower or any Restricted Subsidiary) payment in cash of the Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) Obligations, that are assumed by the transferee of any such assets with respect to the applicable Asset Sale and for which the Borrower and/or its applicable Restricted Subsidiary and all of the Subsidiaries shall have been validly released by all relevant applicable 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 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 writing and (zB) any Designated Non-Cash Consideration received in respect of such Disposition Asset Sale having an aggregate fair market valuevalue as reasonably determined by the Borrower in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (zB) that is at that time outstanding, not in excess of the greater of (1) $105,000,000 5,000,000 and 0.75(2) an amount equal to 10.00% of TTM Consolidated Total Assets as Adjusted EBITDA at the time of the last day receipt of such Designated Non-Cash Consideration, with the most recently ended Test Period, 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 each casevalue, shall be deemed to be Cash)cash; providedprovided further that the Borrower and the Subsidiaries may not sell all or substantially all of their assets, furthertaken as a whole, that to any Person in reliance on this clause (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(iie);
(if) the Borrower and the 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 except to the extent permitted by Section 6.1(d);
(g) the Borrower and the Subsidiaries may consummate any transaction (other than an Asset Sale (determined without regard to the exceptions thereto in the definition thereof)) in connection with a Permitted Acquisition or other Investment permitted by Section 6.6; provided that (i) if the relevant property merging or consolidating Subsidiary is exchanged for credit against a Guarantor Subsidiary, the purchase price of similar replacement property surviving entity is or becomes a Guarantor Subsidiary or (ii) if the proceeds of merging or consolidating Credit Party is the relevant Disposition are promptly applied to Borrower, the purchase price of such replacement propertysurviving entity is the Borrower;
(jh) Dispositions the Borrower and the Subsidiaries may dispose of investments assets or properties to effect the Potential Transfers to the extent reasonably necessary to effect the Potential Transfers; and
(i) the Borrower and the Subsidiaries may dispose of Investments in joint ventures Joint Ventures or Joint Venture Subsidiaries to the extent required by, or made pursuant to, customary buy/sell arrangements agreements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any agreements between such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereofparties.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets in a single transaction or in a series of related transactions, except:
(a) (i1) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (xw) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (yx) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and concurrently with the consummation of such merger, consolidation or amalgamation, 100% of the Capital Stock of the Successor Borrower shall be pledged to the Administrative Agent for the benefit of the Secured Parties, (y) such Successor Borrower shall have complied with the Collateral and Guarantee Requirement and Perfection Requirements (as if such Person were a newly formed Restricted Subsidiary that is not an Excluded Subsidiary), and (z)
(1) except as the Administrative Agent may otherwise agree, each GuarantorLoan Party, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents, (2) upon its reasonable request, the Administrative Agent shall have received customary legal opinions, (3) the Administrative Agent shall have received at least three (3) Business Days prior to such Person becoming the Successor Borrower all documentation and other information in respect of such Successor Borrower required under applicable “know your customer” and anti-money laundering rules and regulations (including the USA Patriot Act) and (4) if such Successor Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, then such Person shall have delivered to the Administrative Agent a Beneficial Ownership Certification in relation to such Person; it being understood and agreed that if the foregoing conditions under clauses (xw) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the guarantee obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b2) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for Fair Market Value with at least 75% of the consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (including ii) treated as a result of a Divisionan Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary may be converted into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d4) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e5) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f6) Dispositions of Cash and/or Cash Equivalents and/or or other assets that were Cash Equivalents when the relevant original Investment was made;
(g7) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) 8) Dispositions for fair market valueFair Market Value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 100.0 million and 0.3540.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisAdjusted EBITDA, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided Equivalents; provided, that for purposes of the 75% Cash consideration requirement, (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 in 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 assets 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 one hundred eighty (180) days following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 100.0 million and 0.7540.0% of Consolidated Total Assets as of the last day of the most recently ended Test PeriodAdjusted EBITDA, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists shall exist and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i9) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j10) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k11) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) and any factoring or similar arrangement or in connection with the collection or compromise thereofof any of the foregoing;
(l12) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), which (i) the Disposition or termination of which will do not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(13) (i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n14) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o15) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p16) [reserved];
(17) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made acquired in connection with the approval any acquisition permitted hereunder and sales of any applicable antitrust authority or otherwise necessary or advisable Real Estate Assets acquired in the good faith determination of the Borrower to consummate any acquisition permitted hereunder; provided that (i) the Net Proceeds received in connection with any such Disposition shall be applied and/or reinvested as (and to the extent required) by Section 2.11(b)(ii) and (ii) no Event of Default exists on the date on which the definitive agreement governing the relevant Disposition is executed;
(r18) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like property or assets; provided that, that (i) upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets property received do does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swappedswapped and (ii) any Net Proceeds received as “cash boot” in connection with any such transaction shall be applied and/or reinvested as (and to the extent required) by Section 2.11(b)(ii);
(s19) [reserved];
(20) (i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u21) terminations or unwinds of Derivative Transactions;
(v22) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted SubsidiariesSubsidiaries (other than to the extent the primary assets thereof consist of Cash and Cash equivalents (except to the extent constituting proceeds from the Disposition of all or substantially all of the assets (other than Dispositions constituting solely of Cash or Cash equivalents) of such Unrestricted Subsidiary));
(w23) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x24) Dispositions made to comply with any order of any Governmental Authority agency of the U.S. Federal government, any state, authority or other regulatory body or any applicable Requirement of Law;
(y25) any merger, amalgamation, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z26) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa27) Dispositions involving assets having a fair market value (as reasonably determined by Fair Market Value in the Borrower at the time of the relevant Disposition) aggregate in any Fiscal Year of not more than the greater of $50,000,000 80.0 million and 0.3630.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal YearAdjusted EBITDA, which, if not used in such any Fiscal Year, shall may be carried forward to succeeding subsequent Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc28) any Disposition Sale and Lease-Back Transactions of Securitization Assets (other assets having a Fair Market Value in the aggregate of not more than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financingthe greater of $127.5 million and 50.0% of Consolidated Adjusted EBITDA. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereofVIII.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Hillman Solutions Corp.)
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of mergermerge, consolidation or amalgamationconsolidate, consummate a Division as the Dividing Personamalgamate, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any voluntary Disposition of assets outside the ordinary course of business having a fair market value in excess of the greater of $610,000,000 and 10% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period in any assetssingle transaction or series of related transactions (including, in each case, pursuant to a Delaware LLC Division), except:
(a) (i) the Borrower or any Subsidiary Guarantor may be merged, consolidated or amalgamated with another Person or, if applicable, effect a Delaware LLC Division, or any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiariesif applicable, such effect a Delaware LLC Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a); provided that that:
(Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower or any Delaware LLC Division relating to the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation consolidation, amalgamation or amalgamation Delaware LLC Division is not the Borrower (any such Person, the “Successor Borrower”), (x1) the Successor Borrower shall be an entity organized or existing under the law of the U.S.US, any state thereof or the District of Columbia, (y2) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z3) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x1) through (z3) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and and
(Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower any Subsidiary Guarantor or any Delaware LLC Division relating to any Subsidiary Guarantor, either (1A) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person (or, in the case of an amalgamation, the Person formed as a result thereof) shall expressly assume the obligations of the Borrower or such Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2B) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including ); provided that if the relevant Disposition is to a Restricted Subsidiary that is not a Loan Party, the relevant transaction shall be treated as a result of a Division)an Investment and shall comply with Section 6.06;
(c) (i) the liquidation liquidation, dissolution or dissolution Delaware LLC Division of any Restricted Subsidiary if (x) the Borrower determines in good faith that (A) such liquidation liquidation, dissolution or dissolution Delaware LLC Division is in the best interests of the Borrower, Borrower and (B) is not materially disadvantageous to the Lenders (taken as a whole) and (iiy) the Borrower or any Restricted Subsidiary receives any the assets (if any) of the relevant liquidated, dissolved or liquidated divided Restricted Subsidiary; provided that in the case of any liquidation liquidation, dissolution or dissolution Delaware LLC Division of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation liquidation, consolidation or consolidationDelaware LLC Division, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.066.06 (other than Section 6.06(j)); and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not not, in the good faith determination of the Borrower, adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property equipment or assets, inventory, equipment and other immaterial assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable good faith judgment of the Borrower, is (Ai) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (Bii) otherwise economically impracticable to maintain, including any property abandoned in connection with the termination of any lease;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (wor would result in) (i) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (xii) Permitted Liens and (yiii) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that that:
(i) with respect to any such Disposition involving assets (other than any Permitted Asset Swap) with a purchase price in excess of the greater of $45,000,000 610,000,000 and 0.3510% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 75% of the consideration for such Disposition (other than the portion of any such Disposition consisting of a Permitted Asset Swap) shall consist of Cash or Cash Equivalents Equivalents;
(provided that ii) for purposes of the 75% Cash consideration requirement, requirement described immediately above:
(wA) 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 in the notes thereto)) that are assumed by the transferee of any such assets (or that are otherwise terminated or cancelled in connection with the transaction with such transferee) and for which the Borrower and/or its applicable Restricted Subsidiary have been validly released by all relevant creditors in writing, ,
(xB) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, ,
(yC) any Securities Security received by the Borrower or any Restricted Subsidiary from such transferee that are will be 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 Disposition, and
(zD) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (zD) that is at that time outstanding, not in excess of the greater of $105,000,000 1220,000,000 and 0.7520% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that and
(xiii) on the date on which the agreement governing such Disposition is executed, no Event amount of Default under Section 7.01(aDispositions made pursuant to this clause (h), (ftogether with the amount of Dispositions made pursuant to Section 6.07(aa) or (g) exists below, does not exceed the greater of $2135,000,000 and (y) 35% of Consolidated Adjusted EBITDA as of the Net Proceeds last day of the most recently ended Test Period in any Fiscal Year, which, if not used in such Disposition Fiscal Year, shall be applied and/or reinvested as (and carried forward to the extent) required by Section 2.11(b)(iinext Fiscal Year (but not to any succeeding Fiscal Years to the extent not fully utilized in the immediately succeeding Fiscal Year; it being understood and agreed that such carried forward amounts shall be deemed utilized first in any Fiscal Year prior to utilization of the indicative amount for such Fiscal Year);
(i) Dispositions to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions Dispositions, discounting or forgiveness of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness to insurers which have provided insurance as to the collection thereof) or in connection with the collection or compromise thereofthereof (including sales to factors);
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries (taken as a whole) or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)[reserved];
(q) Disposition Dispositions of any non-core (as determined by the Borrower in good faith) assets (i) acquired in a connection with any acquisition or other investment Investment permitted hereunder and sales of Real Estate Assets acquired in any acquisition or other Investment permitted hereunder; provided that no Event of Default under Section 7.01(a), which assets are (xf) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (yg) non-core assets or unnecessary to exists on the business or operations of date on which the Borrower and its Restricted Subsidiaries or (ii) made in connection with definitive agreement governing the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the BorrowerBorrower in good faith) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped(including Related Business Assets);
(s) [reserved]Dispositions of assets that do not constitute Collateral for fair market value;
(i) any Disposition, licensing, sublicensing and and/or cross-licensing arrangements arrangement involving any technology or IP Rights Right of the Borrower or any Restricted Subsidiary in the ordinary course of business business, and (ii) Dispositionsany Disposition, abandonmentsabandonment, cancellations cancellation or lapses lapse of any IP RightsRight, or issuances any issuance or registrationsregistration, or applications application for issuances issuance or registrationsregistration, of any IP RightsRight, which, in the reasonable business judgment good faith determination of the Borrower, are Borrower is not material to the conduct of the business of the Borrower or and its Restricted Subsidiaries, taken as a whole, or are is no longer economical to maintain in light of its use;
(u) terminations any termination or unwinds unwind of Derivative TransactionsTransactions or Banking Services Obligations;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of LawLaw (including as a condition to, or in connection with, the consummation of the Transactions);
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Restricted Subsidiary in another jurisdiction in the U.S. US and/or (ii) any Foreign Subsidiary in the U.S. US or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value in the aggregate, together with the amount of Dispositions made pursuant to clause (as reasonably determined by the Borrower at the time of the relevant Dispositionh) above, of not more than the greater of $50,000,000 2135,000,000 and 0.3635% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to the next Fiscal Year (but not to any succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets Years to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of not fully utilized in the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Dispositionimmediately succeeding Fiscal Year; it being understood and agreed that the Administrative Agent such carried forward amounts shall be authorized deemed utilized first in any Fiscal Year prior to take, and shall take, any actions deemed appropriate in order to effect utilization of the foregoing in accordance with Article 8 hereof.indicative amount for such Fiscal Year);
Appears in 1 contract
Samples: Credit Agreement (First Watch Restaurant Group, Inc.)
Fundamental Changes; Disposition of Assets. The Parent Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition having a fair market value in excess of any assets$20,000,000, in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Parent Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Parent Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Parent Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Parent Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Surviving Person shall expressly assume the guarantee obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06; provided, further, that any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Parent Borrower or any other Restricted Subsidiary in connection with the Permitted Restructuring;
(b) Dispositions (including of Capital Stock) among the Parent Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Parent Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Parent Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Parent Borrower or any Restricted Subsidiary may be converted into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Liens, Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and Sale and Lease-back Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 25,000,000 and 0.351.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, as applicable, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 Parent Borrower or any Restricted Subsidiary) of the Parent Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets and for which the Parent 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 assets acquired in connection with such Disposition, (y) any Securities received by the Parent 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) and Section 6.08 that is at that time outstanding, not in excess of the greater of $105,000,000 50,000,000 and 0.751.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists shall exist and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereofthereof and any factoring or similar arrangement) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), which (i) the Disposition or termination of which will do not materially interfere with the business of the Parent Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in connection with the ordinary course of business (as determined in good faith by the Borrower)Existing Credit Agreement Transactions;
(q) Disposition Dispositions of any non-core assets (i) acquired in a connection with any acquisition or other investment permitted hereunderhereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, which assets are (x) not used or useful in the ordinary course or the principal business within 90 days of the date of such acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of the Parent Borrower and or any of its Restricted Subsidiaries or any of their respective businesses; provided that (yi) non-core assets or unnecessary the Net Proceeds received in connection with any such Disposition shall be applied and/or reinvested as (and to the business or operations of the Borrower extent required) by Section 2.11(b)(ii) and its Restricted Subsidiaries or (ii) made in connection with no Event of Default exists on the approval of any applicable antitrust authority or otherwise necessary or advisable in date on which the good faith determination of definitive agreement governing the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like property or assets; provided that, that (i) upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets property received do does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swappedswapped and (ii) any Net Proceeds received as “cash boot” in connection with any such transaction shall be applied and/or reinvested as (and to the extent required) by Section 2.11(b)(ii);
(s) [reservedReserved];
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Parent Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the Borrower, are not material to the conduct of the business of the Parent Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Parent Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority agency of the U.S. Federal government, any state, authority or other regulatory body or any applicable Requirement Requirements of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdictionU.S.;
(z) Dispositions or conveyances that arise out of or relate to any (i) Specified Lease Transaction or (ii) NMTC Transaction;
(aa) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aabb) other Dispositions involving assets having a fair market value (as reasonably determined by the Parent Borrower at the time of the relevant Disposition) in the aggregate since the Closing Date of not more than the greater of $50,000,000 40,000,000 and 0.361.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal YearsPeriod;
(bbcc) so long as Dispositions or conveyances to consummate the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faithPermitted Restructuring; and
(ccdd) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financingthe Performance Chemicals Sale. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof8.
Appears in 1 contract
Samples: Term Loan Credit Agreement (PQ Group Holdings Inc.)
Fundamental Changes; Disposition of Assets. The Borrower shall will not, nor shall will it permit any of its Restricted Subsidiaries Subsidiary to, enter into (i) consummate any transaction of merger, consolidation merger or amalgamation, consummate a Division as the Dividing Personconsolidation, or liquidate, wind wind-up or dissolve themselves itself (or suffer any liquidation or dissolution), (ii) convey, sell, lease, exchange, transfer or otherwise make dispose of, in one transaction or a series of transactions, all or any Disposition part of its business, assets or property of any assetskind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired or leased or (iii) sell, assign or otherwise dispose of any Capital Stock of any Subsidiary (including, in each case in clauses (i) through (iii), pursuant to a Delaware LLC Division), except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into of the Borrower may merge or any other Restricted Subsidiary and consolidate with the Borrower (ii) any Restricted Subsidiary may consummate including a Division as the Dividing Person if, immediately upon the consummation of the Divisionmerger, the assets purpose of which is to reorganize the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in Borrower into a Disposition permitted by Section 6.07 (other than Section 6.07(anew jurisdiction); provided that (A) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1x) the Borrower shall be the continuing or surviving Person and (y) such merger or (2) if the Person formed by or surviving any such merger, consolidation or amalgamation is does not result in the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall ceasing to be an entity organized or existing under the law Laws of the U.S.United States, any state State or Commonwealth thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division);
(i) any Non-Credit Party may merge or consolidate with or into any other Non-Credit Party, (ii) any Subsidiary may merge or consolidate with or into any other Subsidiary that is a Credit Party, (iii) any merger or consolidation the liquidation sole purpose of which is to reincorporate or dissolution of reorganize (x) a Credit Party in another jurisdiction in the United States or (y) a Non-Credit Party in another jurisdiction shall be permitted, (iv) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such liquidation or dissolution action is in the best interests of the Borrower, Borrower and the Subsidiaries and is not materially disadvantageous to the Lenders Lenders, provided, in the case of clauses (ii) through (iv), that (A) no Change of Control shall result therefrom and (B) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Subsidiary that is a Guarantor) shall be a Credit Party;
(c) any Subsidiary may dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted other Subsidiary; provided that in the case a Guarantor Subsidiary may not dispose of any liquidation all or dissolution substantially all of any Loan Party that results in a distribution of its assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be Non-Credit Party unless treated as an Investment and shall comply with that is permitted by Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Division, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;6.6.
(d) conveyances, sales, leases, licenses, exchanges, transfers or other dispositions that do not constitute Asset Sales;
(xe) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other Asset Sales; provided that (i) the consideration received for such assets is in an amount at least equal to the ordinary course of business fair market value thereof (as determined in good faith by the management of the Borrower), (ii) no less than 75% of which will paid in cash or Cash Equivalents, and property (iii) the Net Cash Proceeds thereof are applied as and to the extent required by Section 2.14(a); provided, further that for the purposes of clause (ii), (A) any liabilities (as shown on the Borrower’s most recent balance sheet provided hereunder or assets no longer used or useful in the ordinary course or the principal business footnotes thereto) of the Borrower and its Restricted Subsidiaries) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (w) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are by their terms subordinated to the Obligations or that are owed to the Borrower or any Restricted Subsidiary) payment in cash of the Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) Obligations, that are assumed by the transferee of any such assets with respect to the applicable Asset Sale and for which the Borrower and/or its applicable Restricted Subsidiary and all of the Subsidiaries shall have been validly released by all relevant applicable 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 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 writing and (zB) any Designated Non-Cash Consideration received in respect of such Disposition Asset Sale having an aggregate fair market valuevalue as reasonably determined by the Borrower in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (zB) that is at that time outstanding, not in excess of the greater of (x) $105,000,000 10,000,000 and 0.75(y) an amount equal to 5.0% of LTM Consolidated Total Assets as Adjusted EBITDA at the time of the last day receipt of such Designated Non-Cash Consideration, with the most recently ended Test Period, 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 each casevalue, shall be deemed to be Cash)cash; provided, furtherfurther that the Borrower and the Subsidiaries may not sell or otherwise dispose of all or substantially all of their assets, that taken as a whole, to any Person in reliance on this clause (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(iie);
(if) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted the Subsidiaries may lease (as lessee) or license (iias licensee) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange lease or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, license does not create a Capital Lease except to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swappedpermitted by Section 6.1(d);
(sg) any transaction (other than an Asset Sale (determined without regard to the exceptions thereto in the definition thereof)) in connection with a Permitted Acquisition or other Investment permitted by Section 6.6; provided that (i) if the merging or consolidating Subsidiary is a Guarantor Subsidiary, the surviving entity is or becomes a Guarantor Subsidiary or (ii) if the merging or consolidating Credit Party is the Borrower, the surviving entity is the Borrower;
(h) [reserved];
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights dispositions of Investments in Joint Ventures or Joint Venture Subsidiaries to the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rightsextent required by, or issuances or registrationspursuant to, or applications for issuances or registrations, of IP Rights, which, customary agreements between the joint venture parties set forth in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in binding agreements between such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faithparties; and
(ccj) the Acquisition may be consummated on the Closing Date and any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingPermitted Restructuring Transactions. To the extent that any Collateral is Disposed disposed of as expressly permitted by this Section 6.07 6.8 to any Person other than that is not a Loan Credit Party, such Collateral shall be sold free and clear of the Liens created by the Loan Credit Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent or the Collateral Agent, as applicable, shall, and shall be authorized to taketo, and shall take, take any actions deemed appropriate in order to effect effectuate the foregoing in accordance with Article 8 hereofforegoing.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower shall (a) Holdings will not, nor shall it and will not permit any of its Restricted Subsidiaries Subsidiary to, enter into any transaction of merger, consolidation merge or amalgamation, consummate a Division as the Dividing Personconsolidate, or liquidate, wind wind-up or dissolve themselves itself (or suffer any liquidation or dissolution), or sell, transfer, lease or otherwise make dispose of all or any Disposition part of its assets (including any assetsEquity Interest), whether now owned or hereafter acquired, leased or licensed, except:
(a) (i) any Restricted Subsidiary Person may be merged, consolidated or amalgamated with or merge into the Borrower in a transaction in which the Borrower is the surviving entity; provided that any such merger or any other Restricted consolidation involving a Person that is not a wholly owned Subsidiary and immediately prior thereto shall not be permitted unless it is also permitted under Section 6.6;
(ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(aHoldings or the Borrower) may merge into or consolidate with any Subsidiary (other than the Borrower) in a transaction in which the surviving entity is a Subsidiary (and, if any party to such merger or consolidation is a Guarantor Subsidiary, is a Guarantor Subsidiary); provided that (A) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1) the Borrower shall be the continuing or surviving Person or (2) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into the Borrower or any involving a Person that is not a wholly owned Subsidiary Guarantor, either (1) the Borrower or a Subsidiary Guarantor immediately prior thereto shall not be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2) the relevant transaction shall be treated as an Investment and shall comply with permitted unless it is also permitted under Section 6.066.6;
(biii) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation other than the Borrower) may liquidate or otherwise) (including as a result of a Division);
(i) the liquidation or dissolution of any Restricted Subsidiary dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or in any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Division, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if anymaterial respect;
(div) (x) Dispositions sales, transfers and other dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) and (y) the leasing or subleasing of real property surplus equipment, Cash in the ordinary course of business;
(ev) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintainInvestments permitted under Section 6.6;
(fvi) Dispositions sales, transfers or other dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when accounts receivable in connection with the relevant original Investment was madecompromise or collection thereof in the ordinary course of business and not as part of any accounts receivables financing transaction;
(gvii) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess dispositions of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) property to the extent that (iA) the relevant such property is exchanged for credit against the purchase price of similar replacement property or (iiB) the proceeds of the relevant Disposition such disposition are promptly applied to the purchase price of such replacement property;
(jviii) Dispositions of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable grants in the ordinary course of business (including any discount and/or forgiveness thereof) of licenses, sublicenses, leases or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will subleases not materially interfere interfering with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of Holdings and the Borrower Subsidiaries and its Restricted Subsidiaries not affecting the security interest of the Collateral Agent in the asset or property subject thereto; and
(iiix) sales, transfers, leases and other dispositions of assets that are not permitted by any other clause of this Section 6.8; provided that (A) the aggregate fair value of all assets sold, transferred, leased or otherwise disposed of in reliance on this Section 6.8(a)(ix) shall not exceed $10,000,000 during any Fiscal Year of Holdings, (B) all sales, transfers, leases and other dispositions made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
reliance on this clause (rix) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is shall be made for fair value and at least 75% cash consideration and (C) the Net Proceeds thereof shall be applied as reasonably determined required by the BorrowerSection 2.14.
(b) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, Notwithstanding anything to the extent the assets received do not constitute an Excluded Assetcontrary set forth herein, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensingHoldings will not, sublicensing and cross-licensing arrangements involving will not permit any IP Rights Subsidiary to, sell, transfer or otherwise dispose of any Equity Interests in any Subsidiary unless (A) such Equity Interests constitute all the Borrower or any Restricted Equity Interests in such Subsidiary in held by Holdings and the ordinary course of business Subsidiaries and (iiB) Dispositionsimmediately after giving effect to such transaction, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in Holdings and the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, Subsidiaries shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would otherwise be in compliance with Section 6.13(a6.7 and (ii) on a Pro Forma BasisHoldings will not permit any Subsidiary to issue any additional Equity Interests in such Subsidiary, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than (i) to a Securitization SubsidiaryHoldings or any Subsidiary in compliance with Section 6.6, (ii) or related assets in connection with any Qualified Securitization Financing. To the extent directors’ qualifying shares and (iii) other nominal amounts of Equity Interests that any Collateral is Disposed of as expressly permitted are required to be held by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereofPersons under applicable law.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Parent Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition having a fair market value in excess of any assets$20,000,000, in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Parent Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Parent Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Parent Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Parent Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Surviving Person shall expressly assume the guarantee obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Parent Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Parent Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Parent Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Parent Borrower or any Restricted Subsidiary may be converted into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Liens, Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and Sale and Lease-back Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 25,000,000 and 0.351.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, as applicable, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 Parent Borrower or any Restricted Subsidiary) of the Parent Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets and for which the Parent 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 assets acquired in connection with such Disposition, (y) any Securities received by the Parent 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) and Section 6.08 that is at that time outstanding, not in excess of the greater of $105,000,000 50,000,000 and 0.751.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists shall exist and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereofthereof and any factoring or similar arrangement) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), which (i) the Disposition or termination of which will do not materially interfere with the business of the Parent Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in connection with the ordinary course of business (as determined in good faith by the Borrower)Existing Credit Agreement Transactions;
(q) Disposition Dispositions of any non-core assets (i) acquired in a connection with any acquisition or other investment permitted hereunderhereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, which assets are (x) not used or useful in the ordinary course or the principal business within 90 days of the date of such acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of the Parent Borrower and or any of its Restricted Subsidiaries or any of their respective businesses; provided that (yi) non-core assets or unnecessary the Net Proceeds received in connection with any such Disposition shall be applied and/or reinvested as (and to the business or operations of the Borrower extent required) by Section 2.11(b)(ii) and its Restricted Subsidiaries or (ii) made in connection with no Event of Default exists on the approval of any applicable antitrust authority or otherwise necessary or advisable in date on which the good faith determination of definitive agreement governing the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like property or assets; provided that, that (i) upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets property received do does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swappedswapped and (ii) any Net Proceeds received as “cash boot” in connection with any such transaction shall be applied and/or reinvested as (and to the extent required) by Section 2.11(b)(ii);
(s) [reservedReserved];
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Parent Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the Borrower, are not material to the conduct of the business of the Parent Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Parent Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority agency of the U.S. Federal government, any state, authority or other regulatory body or any applicable Requirement Requirements of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdictionU.S.;
(z) Dispositions or conveyances that arise out of or relate to any (i) Specified Lease Transaction or (ii) NMTC Transaction;
(aa) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;; and
(aabb) other Dispositions involving assets having a fair market value (as reasonably determined by the Parent Borrower at the time of the relevant Disposition) in the aggregate since the Closing Date of not more than the greater of $50,000,000 40,000,000 and 0.361.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingPeriod. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof8.
Appears in 1 contract
Samples: Term Loan Credit Agreement (PQ Group Holdings Inc.)
Fundamental Changes; Disposition of Assets. The Borrower Borrowers shall not, nor shall it they permit any of its their respective Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value (as reasonably determined in good faith by the Parent Borrower) in excess of $3,500,000 in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and Subsidiary;
(iii) any Borrower may be merged, consolidated or amalgamated with or into any other Person (including any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(aSubsidiary); provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1) the Borrower shall be the continuing or surviving Person or (2ii) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the such Borrower (any such Person, the “Successor Borrower”), (xw) the Successor Borrower shall be an entity organized or existing under the law laws of the U.S.US, any state thereof or the District of Columbia, (yx) the Successor Borrower shall expressly assume the Obligations of the such Borrower in a manner reasonably satisfactory to the Administrative Agent, (y) the Administrative Agent shall have a security interest in the Collateral for the benefit of the Secured Parties pursuant to the Collateral Documents that is perfected to at least the same extent as in effect immediately prior to such merger, consolidation or amalgamation and all actions reasonably requested by the Administrative Agent to maintain such perfected status have been or will promptly be taken (subject to the terms of the applicable Loan Documents), and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (xw) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the such Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the any Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division);
(c) (i) the liquidation or dissolution of any Restricted Subsidiary if the Parent Borrower determines in good faith that such liquidation or dissolution is in the best interests of the BorrowerBorrowers or such Restricted Subsidiary, is not materially disadvantageous to the Lenders Lenders, and the Borrower Borrowers or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause Section 6.07(a) or (b) or this clause (cSection 6.07(c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the any Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or the Collateral, if anytaken as a whole;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Parent Borrower, is (Ai) no longer useful in its business (or in the business of any Restricted Subsidiary of the any Borrower) or (Bii) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and Liens, (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) or (z) Sale-Leaseback Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 3,500,000 and 0.357.0% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (w) the greater of the principal amount and carrying value of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to as reflected on 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 of the Parent Borrower (or statement of financial position (a Parent Company) provided hereunder or in the notes footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of the Parent Borrower (or Parent Company) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Parent Borrower) of any Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets and for (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which the releases such Borrower and/or its applicable or such Restricted Subsidiary have been validly released by all relevant creditors in writingfrom such liabilities, (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 any Borrower or any Restricted Subsidiary from such the 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 in respect of such Disposition having an aggregate fair market valuevalue (as reasonably determined in good faith by the Parent Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) and Section 6.08(b)(z) that is at that time outstanding, not in excess of the greater of $105,000,000 10,000,000 and 0.7520.0% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or (i) accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereofthereof and sales to factors or similar third parties) or in connection with the collection or compromise thereofthereof and (ii) receivables and related assets pursuant to any Permitted Receivables Financing;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the any Borrower and any of its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product or business line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closedclosed (or otherwise in connection with the closing or sale of any facility);
(p) Dispositions to the extent otherwise restricted by this Section 6.07, the consummation of Real Estate Investments in the ordinary course of business Transactions (as determined in good faith by including the BorrowerTarget Merger);
(q) Disposition Dispositions of any non-core assets (i) and sales of Real Estate Assets acquired in a any acquisition or other investment permitted hereunder, hereunder which assets are (x) the Parent Borrower determines in good faith will not be used or useful in for the ordinary course continued operation of any Borrower or the principal business any of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations any of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereundertheir respective businesses;
(r) exchanges or swaps, including including, without limitation, transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Parent Borrower) for like assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded AssetAssets, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved]Dispositions of assets that do not constitute Collateral for fair market value;
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or other IP Rights of the any Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances issuance or registrationsregistration, or applications for issuances issuance or registrationsregistration, of IP Rights, which, in the reasonable business judgment good faith determination of the Parent Borrower, are not material to the conduct of the business of the any Borrower or and any of its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, any Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of LawLaw (including, without limitation, the Dispositions of any assets (including Capital Stock) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition);
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. US and/or (ii) any Foreign Subsidiary in the U.S. US or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) other Dispositions involving assets having a fair market value (as reasonably determined in good faith by the Parent Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 7,500,000 and 0.3615.0% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;Period; and
(bb) so long as Dispositions contemplated on the Borrower would be in compliance with Section 6.13(a) Closing Date and described on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingSchedule 6.07 hereto. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate reasonably requested by the Parent Borrower (including, without limitation, any full or partial release or subordination of any Lien granted pursuant to the terms of this Agreement) in order to effect the foregoing in accordance with Article 8 hereof.
Appears in 1 contract
Samples: Credit Agreement (Certara, Inc.)
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of mergermerge, consolidation or amalgamationconsolidate, consummate a Division as the Dividing Personamalgamate, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any voluntary Disposition of assets outside the ordinary course of business having a fair market value in excess of the greater of $36,000,000 and 24% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period in any assetssingle transaction or series of related transactions (including, in each case, pursuant to a Delaware LLC Division), except:
(a) (i) the Borrower or any Subsidiary Guarantor may be merged, consolidated or amalgamated with another Person or, if applicable, effect a Delaware LLC Division, or any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiariesif applicable, such effect a Delaware LLC Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a); provided that that:
(Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower or any Delaware LLC Division relating to the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation consolidation, amalgamation or amalgamation Delaware LLC Division is not the Borrower (any such Person, the “Successor Borrower”), (x1) the Successor Borrower shall be an entity organized or existing under the law of the U.S.US, any state thereof or the District of Columbia, (y2) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z3) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x1) through (z3) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and and
(Bii) in the case of any such merger merger, consolidation, amalgamation or Division, consolidation or amalgamation Delaware LLC Division with or into the Borrower or any Subsidiary Guarantor, either (1A) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person (or, in the case of an amalgamation, the Person formed as a result thereof) shall expressly assume the obligations of the Borrower or such Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2B) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division);
(c) (i) the liquidation liquidation, dissolution or dissolution Delaware LLC Division of any Restricted Subsidiary if the Borrower determines in good faith that (A) such liquidation liquidation, dissolution or dissolution Delaware LLC Division is in the best interests of the Borrower, Borrower and (B) is not materially disadvantageous to the Lenders (taken as a whole) and (ii) the Borrower or any Restricted Subsidiary receives any the assets (if any) of the relevant liquidated, dissolved or liquidated divided Restricted Subsidiary; provided that in the case of any liquidation liquidation, dissolution or dissolution Delaware LLC Division of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation liquidation, consolidation or consolidationDelaware LLC Division, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.066.06 (other than Section 6.06(j)); and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not not, in the good faith determination of the Borrower, adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property equipment or assets, inventory, equipment and other immaterial assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable good faith judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain, including any property abandoned in connection with the termination of any lease;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (wor would result in) (i) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (xii) Permitted Liens and (yiii) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that provided, that
(i) with respect to any such Disposition involving assets (other than any Permitted Asset Swap) with a purchase price in excess of the greater of $45,000,000 36,000,000 and 0.3524% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, either (I) at least 75% of the consideration for such Disposition (other than the portion of any such Disposition consisting of a Permitted Asset Swap) shall consist of Cash or Cash Equivalents Equivalents, or (provided that II) at least 50% of the consideration for such Disposition (other than the portion of any such Disposition consisting of a Permitted Asset Swap) shall consist of Cash or Cash Equivalents;
(ii) for purposes of the 75% Cash consideration requirement, requirement and the 50% Cash consideration requirement described immediately above:
(wA) 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 in the notes thereto)) that are assumed by the transferee of any such assets (or that are otherwise terminated or cancelled in connection with the transaction with such transferee) and for which the Borrower and/or its applicable Restricted Subsidiary have been validly released by all relevant creditors in writing, ,
(xB) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, ,
(yC) any Securities Security received by the Borrower or any Restricted Subsidiary from such transferee that are will be 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 Disposition, and
(zD) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (zD) that is at that time outstanding, not in excess of the greater of $105,000,000 48,000,000 and 0.7536% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);.
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions Dispositions, discounting or forgiveness of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness to insurers which have provided insurance as to the collection thereof) or in connection with the collection or compromise thereofthereof (including sales to factors);
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries (taken as a whole) or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)[reserved];
(q) Disposition Dispositions of any non-core (as determined by the Borrower in good faith) assets (i) acquired in a connection with any acquisition or other investment Investment permitted hereunder and sales of Real Estate Assets acquired in any acquisition or other Investment permitted hereunder; provided, which assets are that no Event of Default under Sections 7.01(a), (xf) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (yg) non-core assets or unnecessary to exists on the business or operations of date on which the Borrower and its Restricted Subsidiaries or (ii) made in connection with definitive agreement governing the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the BorrowerBorrower in good faith) for like assetsassets (including Related Business Assets); provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved]Dispositions of assets that do not constitute Collateral for fair market value;
(i) any Disposition, licensing, sublicensing and and/or cross-licensing arrangements arrangement involving any technology, intellectual property or IP Rights Right of the Borrower or any Restricted Subsidiary in the ordinary course of business business, and (ii) Dispositionsany Disposition, abandonmentsabandonment, cancellations cancellation or lapses lapse of any IP RightsRight, or issuances any issuance or registrationsregistration, or applications application for issuances issuance or registrationsregistration, of any IP RightsRight, which, in the reasonable business judgment good faith determination of the Borrower, are Borrower is not material to the conduct of the business of the Borrower or and its Restricted Subsidiaries, taken as a whole, or are no longer economical to maintain in light of its use;
(u) terminations Dispositions in connection with the termination or unwinds unwind of Derivative TransactionsTransactions or Banking Services Obligations;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries[reserved];
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of LawLaw (including as a condition to, or in connection with, the consummation of the Transactions);
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Restricted Subsidiary in another jurisdiction in the U.S. US and/or (ii) any Foreign Subsidiary in the U.S. US or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 60,000,000 and 0.3642% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long Dispositions in connection with reorganizations and/or restructurings and/or activities related to tax planning; provided that, after giving effect to any such reorganization, restructuring or activity, in the good faith determination of the Borrower, neither the Loan Guaranty, taken as a whole, nor the security interest of the Administrative Agent in the Collateral, taken as a whole, is materially impaired;
(cc) Dispositions of assets in connection with the closing or sale of an office in the ordinary course of business of the Borrower would be and the Restricted Subsidiaries, which consist of leasehold interests in compliance with Section 6.13(a) on a Pro Forma Basisthe premises of such office, any Disposition the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of Securitization Assets to a Securitization Subsidiarysuch office; provided, that any such Disposition sale shall be for no less than at a commercially reasonable price and on commercially reasonable terms in a bona fide arm’s-length transaction;
(dd) [Reserved];
(ee) (i) Equipment Sale and Leaseback Transactions, (ii) Sale and Lease-Back Transactions with respect to property or assets built or constructed after the Closing Date and (iii) other Sale and Lease-Back Transactions; provided, that in the case of this clause (iii), the fair market value of such all property at so Disposed of after the time Closing Date shall not exceed the greater of such Disposition $78,000,000 and 60% of Consolidated Adjusted EBITDA as determined by of the Borrower in good faith; andlast day of the most recently ended Test Period;
(ccff) any transaction in connection with any PCT Reorganization Transaction;
(gg) any Disposition of Securitization Assets any Receivables Facility Asset (other than to a Securitization Subsidiaryand/or any participation therein) or related assets in connection with any Qualified Securitization FinancingReceivables Facility;
(hh) the Borrower may merge with or into any Person that is not a Restricted Subsidiary (other than Holdings) as long as (i) the Borrower is the continuing or surviving Person and (ii) the relevant transaction does not result in a Change of Control or otherwise violate the terms of this Agreement;
(ii) the settlement or early termination of any Permitted Bond Hedge Transaction and/or any related Permitted Warrant Transaction; and (jj) Dispositions of any asset acquired with the proceeds of an Available Excluded Contribution Amount. To It is understood and agreed that (a) to the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party6.07, such Collateral shall be sold Disposed of free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood , and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate action reasonably requested by the Borrower in order to effect the foregoing foregoing; provided, that in accordance with Article 8 hereofthe case of a Disposition made to any Loan Party, the relevant transferred assets shall become part of the Collateral of the transferee Loan Party (except to the extent such assets constitute Excluded Assets), (b) any determination of the fair market value of any asset other than Cash for purposes of this Section 6.07 shall be made by the Borrower in good faith at its election either (1) at the time of the execution of the definitive agreement governing such Disposition or (2) the date on which such Disposition is consummated and (c) notwithstanding the foregoing, in no event shall the Borrower or any Restricted Subsidiary (i) Dispose of the Capital Stock of any Rao’s Entity, MichaelAngelo Entity or Noosa Entity, as applicable, or the assets comprising the Rao’s Business, MichaelAngelo Business or Noosa Business, as applicable, to any Unrestricted Subsidiary or (ii) Dispose of the Capital Stock of any Rao’s Entity or substantially all of the assets comprising the Rao’s Business to any Restricted Subsidiary that is not a Loan Party.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Lead Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Lead Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, #94513555v35
(1) the Borrower shall be the continuing or surviving Person or (2) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each applicable Subsidiary Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan DocumentsDocuments and (2) upon its reasonable request, the Administrative Agent shall have received customary legal opinions; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the US Successor Borrower will succeed to, and be substituted for, the US Borrower under this Agreement and the other Loan Documents, (ii) in the case of any such merger, consolidation or amalgamation with or into the Canadian Borrower, (A) the Canadian Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Canadian Borrower (any such Person, a “Canadian Successor Borrower”), (x) the Canadian Successor Borrower shall be a Canadian Person, (y) the Canadian Successor Borrower shall expressly assume the Obligations of the Canadian Borrower in a manner reasonably satisfactory to the Administrative Agent and concurrently with the consummation of such merger, consolidation or amalgamation, (i) 65% of the Capital Stock of the Canadian Successor Borrower shall be pledged to the Administrative Agent to secure the Secured Obligations and (ii) 100% of the Capital Stock of the Canadian Successor Borrower shall be pledged to the Administrative Agent to secure the Secured Obligations and (z)
(1) except as the Administrative Agent may otherwise agree, each applicable Subsidiary Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents and (2) upon its reasonable request, the Administrative Agent shall have received customary legal opinions; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Canadian Successor Borrower will succeed to, and be substituted for, the applicable Canadian Borrower under this Agreement and the other Loan Documents, and (Biii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the guarantee obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Lead Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for Fair Market Value with at least 75% of the consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (including ii) treated as a result an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof); provided, further, that the Lead Borrower shall deliver an updated Borrowing Base Certificate at any time the amount of a Division)assets Disposed of pursuant to this clause (b) reduces the Borrowing Bases by more than $20,000,000;
(i) the liquidation or dissolution of any Restricted Subsidiary (other than the Canadian Borrower) if the Lead Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Lead Borrower, is not materially disadvantageous to the Lenders and the Lead Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Lead Borrower or #94513555v35 any Restricted Subsidiary may be converted into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Lead Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Lead Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market valueFair Market Value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 135,000,000 and 0.3540.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisAdjusted EBITDA, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided Equivalents; provided, that for purposes of the 75% Cash consideration requirement, (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 Lead Borrower or any Restricted Subsidiary) of the Lead Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets and for which the Lead 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 assets acquired in connection with such Disposition, (y) any Securities received by the Lead 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 one hundred eighty (180) days following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 135,000,000 and 0.7540.0% of Consolidated Total Assets as of the last day of the most recently ended Test PeriodAdjusted EBITDA, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists shall exist and (y) an updated Borrowing Base Certificate shall be delivered to the Net Proceeds of Administrative Agent to the extent such Disposition shall causes the Borrowing Base to be applied and/or reinvested as (and to the extent) required reduced by Section 2.11(b)(ii)greater than $20,000,000;
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) and any factoring or similar arrangement or in connection with the collection or compromise thereofof any of the foregoing;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), which (i) the Disposition or termination of which will do not materially interfere with the business of the Lead Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;; #94513555v35
(m) (i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in connection with the ordinary course of business (as determined in good faith by the Borrower)Transactions;
(q) Disposition Dispositions of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made acquired in connection with the approval any acquisition permitted hereunder and sales of any applicable antitrust authority or otherwise necessary or advisable Real Estate Assets acquired in the good faith determination of the Borrower to consummate any acquisition permitted hereunder; provided that no Event of Default exists on the date on which the definitive agreement governing the relevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Lead Borrower) for like property or assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets property received do does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved]Dispositions set forth on Schedule 6.07(s);
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Lead Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the Lead Borrower, are not material to the conduct of the business of the Lead Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Lead Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority agency of the U.S. Federal government, any state, authority or other regulatory body or any applicable Requirement of Law;
(y) any merger, amalgamation, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S., (ii) any Canadian Loan Party in the U.S. or Canada and/or (iiiii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;; #94513555v35
(aa) Dispositions involving assets having a fair market value (as reasonably determined by Fair Market Value in the Borrower at the time of the relevant Disposition) aggregate in any Fiscal Year of not more than the greater of $50,000,000 120,000,000 and 0.3635.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis Adjusted EBITDA, which if not used in any Fiscal Year, which, if not used in such Fiscal Year, shall may be carried forward to succeeding subsequent Fiscal Years;; and
(bb) so long as Sale and Lease-Back Transactions of assets having a Fair Market Value in the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition aggregate of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less not more than the fair market value greater of such property at the time $170,000,000 and 50.0% of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingConsolidated Adjusted EBITDA. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof8.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Other than the Acquisition, the Closing Date Merger and the other Transactions and/or as part of any Permitted Practice Subsidiary Restructuring, the Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value in excess of $5,000,000 in a single transaction or a series of related transactions and in excess of $10,000,000 in the aggregate for all such transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; , it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1A) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or such Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2B) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); , (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; 6.06 and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property equipment or assets, inventory, equipment and other immaterial assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and Liens, (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and (z) Sale-Leaseback Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis20,000,000, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (wi) 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 in 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, (xii) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (yiii) any Securities Security received by the Borrower or any Restricted Subsidiary from such transferee that are is 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 (ziv) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) and Section 6.08(B)(1) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period40,000,000, in each case, shall be deemed to be Cash); provided, further, that (xA) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (yB) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions to the extent constituting a Disposition, the consummation of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)other Transactions;
(q) Disposition Dispositions of any non-core assets (i) acquired in a connection with any acquisition or other investment permitted hereunderhereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, which assets within 90 days of the date of such acquisition, are (x) designated in writing to the Administrative Agent as being held for sale and not used or useful in for the ordinary course or the principal business continued operation of the Borrower and or any of its Restricted Subsidiaries or (y) non-core assets or unnecessary to any of their respective businesses; provided that no Event of Default exists on the business or operations of date on which the Borrower and its Restricted Subsidiaries or (ii) made in connection with definitive agreement governing the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];Dispositions of assets that do not constitute Collateral for fair market value; provided that the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii).
(t) (i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;; and
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis 10,000,000 in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.
Appears in 1 contract
Samples: First Lien Credit Agreement (ATI Physical Therapy, Inc.)
Fundamental Changes; Disposition of Assets. The Borrower shall notNo Issuer shall, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition Disposition, in a single transaction or in a series of any assetsrelated transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower Issuer or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the BorrowerIssuer, (1) the Borrower such Issuer shall be the continuing or surviving Person or and (2ii) if in the Person formed by or surviving case of any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the guarantee obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower Issuer and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition by any Note Party to any Person that is not a Note Party shall be (i) for fair market value (including as reasonably determined by such Person) with at least 75% of the consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof); provided, further, that any such Disposition by any Note Party (whether as a result single transaction or any series of transactions) to any Non-Qualified Note Party of any intellectual property that, individually or in the aggregate, is material to the business of the Issuer and their Restricted Subsidiaries, taken as a Divisionwhole, shall be treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clauses (b)(ii) or (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower Issuer determines in good faith that such liquidation or dissolution is in the best interests of the BorrowerIssuer, is not materially disadvantageous to the Lenders Holders and the Borrower Issuer or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Note Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Note Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.066.06 (other than in reliance on clause (j) thereof); and (iii) the conversion of the Borrower or any Restricted Subsidiary (other than the Issuer) may be converted into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Note Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the BorrowerIssuer, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrowersuch Issuer) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Liens, Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and Sale and Lease-Back Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, 10,000,000 at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 Issuer or any Restricted Subsidiary) of the Borrower Issuer or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets and for which the Borrower Issuer 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 assets acquired in connection with such Disposition, (y) any Securities received by the Borrower Issuer 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of (i) $105,000,000 20,000,000 and 0.75(ii) 10.0% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists shall exist and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereofthereof and any factoring or similar arrangement) or in connection with the collection or compromise thereofthereof (other than in connection with a Permitted Securitization Financing);
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), which (i) the Disposition or termination of which will do not materially interfere with the business of the Borrower Issuer and its their Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in connection with the ordinary course of business (as determined in good faith by the Borrower)Transactions;
(q) Disposition Dispositions of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary acquired in connection with any acquisition permitted hereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, within 90 days of the date of such acquisition, are designated in writing to the business or operations Administrative Agent as being held for sale and not for the continued operation of the Borrower and its Issuer or any of their Restricted Subsidiaries or any of their respective businesses; provided that (i) the Net Proceeds received in connection with any such Disposition shall be applied and/or reinvested as (and to the extent required) by Section 2.11(b)(ii) and (ii) made in connection with no Event of Default exists on the approval of any applicable antitrust authority or otherwise necessary or advisable in date on which the good faith determination of definitive agreement governing the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange or swap is made for fair value (as reasonably determined by the BorrowerIssuer) for like property or assets; provided that, that (i) upon the consummation of any such exchange or swap by any Loan Note Party, to the extent the assets property received do does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swappedswapped and (ii) any Net Proceeds received as “cash boot” in connection with any such transaction shall be applied and/or reinvested as (and to the extent required) by Section 2.11(b)(ii);
(s) [reserved]the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings;
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrower Issuer or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the BorrowerIssuer, are not material to the conduct of the business of the Borrower Issuer or its their Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted SubsidiariesSubsidiaries so long as (i) no Default or Event of Default then exists or would result therefrom (ii) substantially all of the assets of such Unrestricted Subsidiary does not consist of Cash, Cash Equivalents and/or assets that were contributed and/or otherwise transferred to such Unrestricted Subsidiary by the Issuer or any Restricted Subsidiary in the form of one or more Investments and (iii) the fair market value of the Capital Stock in such Unrestricted Subsidiary does not exceed 10% of Consolidated Adjusted EBITDA as of the most recently ended Test Period;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Issuer and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority agency of the U.S. Federal government, any state, authority or other regulatory body or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdictionU.S.;
(z) other Dispositions not in excess of the greater of (1) (i) $8,500,000 and (ii) 2.0% of Consolidated Adjusted EBITDA for the Test Period then most recently ended for any individual Disposition made under this clause (z) and (2) (i) $17,000,000 and (ii) 5.0% of Consolidated Adjusted EBITDA for the Test Period then most recently ended in the aggregate for all Dispositions made under this clause (z);
(aa) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith[Reserved]; and
(cc) Dispositions contemplated on the Closing Date and described on Schedule 6.07. Notwithstanding anything herein to the contrary, (x) the only baskets available for Investments made in, or Dispositions or Restricted Payments to, Unrestricted Subsidiaries and their respective Subsidiaries and designations of Unrestricted Subsidiaries shall be Section 6.06(x) (it being understood, for the avoidance of doubt, that the amount of any Disposition such Investment shall be measured solely as of Securitization Assets the date of any designation of such Unrestricted Subsidiary or any additional Investment therein, as applicable) and (y) neither the Issuer nor any other than Restricted Subsidiary shall sell, transfer, lease or otherwise dispose of any material Intellectual Property to a Securitization Subsidiary) or related assets in connection any Unrestricted Subsidiary (with any Qualified Securitization Financingsuch attempted transfer void ab initio). To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Note Party, such Collateral shall be sold free and clear of the Liens created by the Loan Notes Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof8.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower Holdings shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves itself (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsDisposition, except:
(a) Dispositions (i) any Restricted Subsidiary may be mergedbetween or among Loan Parties, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division from Subsidiaries that are not Loan Parties to Loan Parties, (iii) between or among Subsidiaries that are not Loan Parties and (iv) from Loan Parties to Subsidiaries that are not Loan Parties to the extent such Dispositions would be permitted as Investments under Section 6.05 (and for the Dividing Person if, immediately upon the consummation avoidance of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiariesdoubt, such Division, in the aggregate, would otherwise result in a Disposition permitted by Dispositions shall use basket capacity under Section 6.07 (other than Section 6.07(a6.05); provided that (A) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1) the Borrower shall be the continuing or surviving Person or (2) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower Holdings determines in good faith that such liquidation or dissolution (x) is in the best interests of the BorrowerHoldings, (y) is not materially disadvantageous to the Lenders Lender and the Borrower (z) if such liquidating or any Restricted dissolving Subsidiary is a Loan Party, a Loan Party receives any assets of the relevant such dissolved or liquidated Restricted Subsidiary; provided that in the case of any no dissolution or liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Division, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if anyshall be permitted hereunder;
(dc) (xi) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and equipment, raw or scrap materials or other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(ei) Dispositions of surplus, obsolete, used or worn out property or other property that, as determined in the reasonable judgment of the Borrowergood faith by Holdings, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrowerits Subsidiaries) or (B) otherwise economically impracticable to maintainmaintain and (ii) any assets acquired in connection with the acquisition of another Person or a division or line of business of such Person which Holdings reasonably determines in good faith are surplus assets;
(fe) Dispositions of Cash and/or Cash Equivalents and/or or other assets that were Cash Equivalents when the relevant original Investment was mademade (in each case, for the Fair Market Value thereof);
(f) Sale and Lease-Back Transactions permitted by clause (A) or (B) of the proviso in Section 6.07;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market valueFair Market Value; provided that with respect to any all such Disposition involving assets Dispositions (in a single transaction or in a series of related transactions) with a purchase price in an aggregate amount in excess of the greater of $45,000,000 10,000,000 and 0.3510% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 75% of the consideration for such Disposition Dispositions in the aggregate for all such Dispositions after the Closing Date shall consist of Cash or Cash Equivalents (provided that Equivalents; provided, further, that, for purposes of the 75% determining what constitutes Cash consideration requirementand Cash Equivalents under this clause (g), (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 in 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 assets acquired in connection with such Disposition, (yi) any Securities securities received by the Borrower Holdings or any Restricted such Subsidiary from such transferee that are converted by Holdings or such Person Subsidiary into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents cash received) within 180 days following the closing of the applicable Disposition shall be deemed to be Cash and (zii) any Designated Non-Cash Consideration received by Holdings or such Subsidiary in respect of such the applicable Disposition having an aggregate fair market valueFair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) proviso that is outstanding at that the time outstandingsuch Designated Non-Cash Consideration is received, not in excess of the greater of $105,000,000 10,000,000 and 0.7510% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test PeriodPeriod 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 each casevalue, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(ih) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(ji) Dispositions Dispositions, discounting or forgiveness of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness to insurers which have provided insurance as to the collection thereof) or in connection with the collection or compromise thereofthereof (including sales to factors);
(lj) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any an open source license), which (i) the Disposition or termination of which will do not materially interfere with the business of the Borrower Holdings and its Restricted Subsidiaries (taken as a whole) or (ii) which relate to closed facilities or the discontinuation of any product or service line;
(k) (i) any termination of any lease leases in the ordinary course of business, (ii) any the expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims (including in tort) in the ordinary course of business;
(nl) Dispositions of property subject to casualty, foreclosure, casualtyeminent domain, eminent domain expropriation or condemnation proceedings (including in lieu thereof or any similar proceeding);
(om) other Dispositions or consignments of equipment, inventory or other assets (including leasehold interests after the Closing Date in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) aggregate amount of not more than the greater of $50,000,000 7,500,000 and 0.367.5% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to the immediately succeeding Fiscal YearsYear; provided that no Event of Default shall have occurred and be continuing on the date on which the definitive agreement governing the relevant Disposition is executed;
(bbi) so long as Dispositions, licensing, sublicensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of Holdings or any Subsidiary in the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition ordinary course of Securitization Assets to a Securitization Subsidiarybusiness; provided, that any such Disposition lease, license or sublease of IP Rights shall be (x) granted on a non-exclusive basis and (y) limited in time, and (ii) the Disposition, abandonment, cancellation or lapse of any technology, intellectual property or IP Rights, or any issuances or registrations, or applications for issuances or registrations, of any intellectual property or IP Rights, which, in the reasonable good faith determination of Holdings are not material to the conduct of the business of Holdings and/or its Subsidiaries, or are no less than the fair market value longer economical to maintain in light of such property at the time of such Disposition as determined by the Borrower in good faith; andits use;
(cco) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets Dispositions in connection with the termination or unwinding of Derivative Transactions entered into in the ordinary course of business and not for speculative purposes;
(p) any Qualified Securitization Financing. To merger, amalgamation, consolidation, Disposition or conveyance the extent sole purpose and effect of which is to reincorporate or reorganize (i) any Subsidiary organized in a state within the United States in another state within the United States or (ii) any other Subsidiary in the United States or any other jurisdiction;
(q) Dispositions of assets that any do not constitute Collateral is Disposed having an aggregate Fair Market Value of up to the greater of $5,000,000 and 5% of Consolidated Adjusted EBITDA as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by last day of the Loan Documents, most recently ended Test Period; provided that no Event of Default shall have occurred and be continuing on the date on which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that definitive agreement governing the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.relevant Disposition is executed;
Appears in 1 contract
Samples: Secured Seller Note Agreement (American Water Works Company, Inc.)
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value (as reasonably determined by the Borrower) in excess of $3,000,000 in a single transaction or in a series of related transactions or in excess of $5,000,000 in the aggregate for all such transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person ifSubsidiary; provided, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a); provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (v) written notice of such merger, consolidation or amalgamation must be provided to the Administrative Agent at least ten (10) Business Days prior to the effectiveness thereof, (w) the Borrower shall have delivered to the Administrative Agent all documentation and other information requested by the Administrative Agent with respect to such Successor Borrower (including any Beneficial Ownership Certification) required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act and the Beneficial Ownership Regulation, no later than two Business Days prior to the date of such effectiveness (or such later date as may be agreed by the Administrative Agent), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations all obligations of the Borrower in under this Agreement and the other Loan Documents to which it is a manner party pursuant to an agreement reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty Guarantee Agreement and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (xv) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation by, or with or into the Borrower or into, any Subsidiary Guarantor, either (1x) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person shall be a Subsidiary Guarantor or the continuing or surviving Person shall expressly assume the obligations of the Borrower or such Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.066.05 (other than in reliance on clause (j) thereof);
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided, that any such Disposition made by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by the Borrower) with at least 75.0% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.05 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, Borrower and is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted SubsidiaryLenders; provided provided, that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 6.05 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, consolidation, amalgamation, dissolution, dissolution or liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 6.06 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.066.05(j); and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, entity so long as as, in the case of any Loan Party, such conversion does not adversely affect materially impair the value Loan Guaranties, taken as a whole, or the security interest of the Loan Guaranty or Administrative Agent in the Collateral, if anytaken as a whole;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (Ai) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (Bii) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute or effect (wi) Investments permitted pursuant to Section 6.06 6.05 (other than Section 6.06(j6.05(j)), (xii) Permitted Liens and Liens, (yiii) Restricted Payments permitted by Section 6.04(a6.03(a) (other than Section 6.04(a)(ix6.03(a)(ix))) and (iv) Sale-Lease-Back Transactions permitted by Section 6.07;
(h) Dispositions for fair market valuevalue (as reasonably determined by the Borrower); provided provided, that with respect to any such Disposition involving if the assets with Disposed of have a purchase price fair market value in excess of the greater of $45,000,000 5,000,000 and 0.355.0% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 7575.0% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided provided, that for purposes of the 75% Cash foregoing consideration requirement, (wi) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated in right of payment 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 in 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, (xii) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated in right of payment to the Obligations or that are owed to the Borrower or any Restricted Subsidiary) of any Restricted Subsidiary that, as a result of such Disposition or any related Disposition, is no longer a Restricted Subsidiary, to the extent that the Borrower and the other Restricted Subsidiaries have been validly released by all relevant creditors in writing from any Guarantee in respect of such Indebtedness or other liability, (iii) the amount of any trade-in value (as reasonably determined by the Borrower) applied to the purchase price of any replacement assets acquired in connection with such Disposition, (yiv) any Securities received by the Borrower or any Restricted Subsidiary from such the applicable 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 (zv) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market valuevalue (as reasonably determined by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (zv) and clause (IV) of Section 6.07 that is at that time outstanding, not in excess of the greater of $105,000,000 5,000,000 and 0.755.0% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (xA) on the date on which the agreement governing immediately prior to and after giving effect to such Disposition is executedDisposition, no Event of Default under Section 7.01(a7.1(a), (f7.1(f) or (g7.1(g) exists and (yB) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii2.10(b)(ii);
(i) Dispositions of property to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in any joint ventures venture or any Restricted Subsidiary that is not a Wholly-Owned Subsidiary, in each case, to the extent required by, or made pursuant to, customary buy/sell arrangements between parties to such joint venture or equityholders in such Restricted Subsidiary set forth in the joint venture parties set forth in agreement, operating agreement, shareholders agreement or similar agreement governing such joint venture arrangements and similar binding arrangementsor such Restricted Subsidiary;
(k) Dispositions of (i) notes receivable or accounts receivable in the ordinary course of business (including any discount discount, netting and/or forgiveness thereof) or in connection with the collection or compromise thereofthereof and (ii) Receivables Assets, in connection with any Receivables Facility;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries Subsidiaries, taken as a whole, or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease lease, sublease, license or sublicense in the ordinary course of businessbusiness (and any related Disposition of improvements made to leased or sub-leased real property resulting therefrom), (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain condemnation, taking or condemnation proceedings (including in lieu thereof or any similar proceeding)event proceedings;
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions to the extent constituting a Disposition, the consummation of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)Transactions;
(q) Disposition Dispositions of any non-core assets (i) acquired in a connection with any acquisition or other investment similar Investment permitted hereunderhereunder and sales of Real Estate Assets acquired in any acquisition or similar Investment permitted hereunder which, which assets within 180 days of the date of such acquisition or Investment, are (x) designated in writing to the Administrative Agent as being held for sale and not used or useful in for the ordinary course or the principal business continued operation of the Borrower and or any of its Restricted Subsidiaries or any of their respective businesses; provided, that (yi) non-core assets or unnecessary immediately prior to the business or operations and after giving effect to such Disposition, no Event of the Borrower Default exists and its Restricted Subsidiaries or (ii) made in connection with the approval Net Proceeds of any applicable antitrust authority or otherwise necessary or advisable in such Disposition shall be applied and/or reinvested as (and to the good faith determination of the Borrower to consummate any acquisition permitted hereunderextent) required by Section 2.10(b)(ii);
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair market value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and or cross-licensing arrangements involving any technology, software or IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of any technology, software or IP Rights, or any issuances or registrations, or any applications for issuances or registrations, of any IP Rights, which, in the reasonable business judgment good faith determination of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, Subsidiaries or are no longer economical to maintain in light of its their use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions the ACO Reach Sale; provided, that the Net Proceeds of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiariessuch Disposition shall be applied as (and to the extent) required by Section 2.10(b)(iv);
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities of any Employee Related Person of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Lawlaw;
(y) any merger, consolidation, amalgamation or Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary (other than the Borrower) in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value any Disposition of Capital Stock of any of the Borrower’s subsidiaries to members of the board of directors (or equivalent body otherwise named) of such subsidiary in order to qualify members of the board of directors of such subsidiary, if required by applicable law, so long as reasonably determined by the Borrower at the time will continue to own, directly or indirectly, not less than 80.0% of the relevant Dispositionissued and outstanding Capital Stock of such subsidiary; and
(bb) of other Dispositions in an aggregate amount not more than to exceed the greater of (i) $50,000,000 5,000,000 and 0.36(ii) 5.0% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingPeriod. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 6.06 to any Person other than that is not a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof. Notwithstanding anything to the contrary contained in this Section 6.06, no Loan Party shall make any Disposition of Material Intellectual Property to any Subsidiary (other than another Loan Party) or any Unrestricted Subsidiary; provided that nothing in this sentence shall prohibit any non-exclusive (other than exclusive distribution or other similar rights within a specified jurisdiction) license or sublicense of Material Intellectual Property to, or use of Material Intellectual Property by, any Subsidiary in the ordinary course of business.
Appears in 1 contract
Samples: Credit Agreement (Cano Health, Inc.)
Fundamental Changes; Disposition of Assets. The Borrower shall will not, nor shall will it permit any of its Restricted Subsidiaries Subsidiary to, (i) enter into any transaction of merger, consolidation merger or amalgamation, consummate a Division as the Dividing Personconsolidation, or liquidate, wind wind-up or dissolve themselves itself (or suffer any liquidation or dissolution), (ii) convey, sell, lease, exchange, transfer or otherwise make dispose of, in one transaction or a series of transactions, all or any Disposition part of its business, assets or property of any assetskind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired or leased or (iii) sell, assign, pledge or otherwise dispose of any Capital Stock of any of its Subsidiaries, except:
(a) (i) any Restricted Parent or Subsidiary may be merged, consolidated merge or amalgamated consolidate with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate including a Division as the Dividing Person if, immediately upon the consummation of the Divisionmerger, the assets purpose of which is to reorganize the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in Borrower into a Disposition permitted by Section 6.07 (other than Section 6.07(anew jurisdiction); provided that (A) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1x) the Borrower shall be the continuing or surviving Person Person, (y) such merger or (2) if the Person formed by or surviving any such merger, consolidation or amalgamation is does not result in the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall ceasing to be an entity organized or existing under the law Laws of the U.S.United States, any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent Columbia and (z) except as in the Administrative Agent may otherwise agreecase of a merger or consolidation of any Parent of the Borrower with and into the Borrower, each Guarantor, unless it (1) such Parent shall not be an obligor in respect of any Indebtedness that is the other party not permitted to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, Indebtedness of the Borrower under this Agreement and (2) such Parent shall have no direct Subsidiaries at the other Loan Documents, and (B) in the case time of any such merger or Division, consolidation or amalgamation with or into other than the Borrower or any Subsidiary Guarantor, either (1) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division)Borrower;
(i) any Subsidiary that is not a Credit Party may merge or consolidate with or into any other Subsidiary that is not a Credit Party, (ii) any Subsidiary may merge or consolidate with or into any other Subsidiary that is a Credit Party, (iii) any merger the liquidation sole purpose of which is to reincorporate or dissolution of reorganize a Credit Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such liquidation or dissolution action is in the best interests of the Borrower, Borrower and its Subsidiaries and is not materially disadvantageous to the Lenders Lenders, provided, in the case of clauses (ii) through (iv), that (A) no Change of Control shall result therefrom and (B) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Subsidiary that is a Guarantor) shall be a Credit Party;
(c) any Subsidiary may dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted other Subsidiary; provided that in the case a Guarantor Subsidiary may not dispose of any liquidation all or dissolution substantially all of any Loan Party that results in a distribution of its assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be Non-Credit Party unless treated as an Investment and shall comply with that is permitted by Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Division, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;6.6.
(d) conveyances, sales, leases, exchanges, transfers or other dispositions that do not constitute Asset Sales;
(xe) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other Asset Sales; provided that (i) the consideration received for such assets is in an amount at least equal to the ordinary course of business fair market value thereof (as determined in good faith by the management of the Borrower), and property or assets (ii) no longer used or useful less than 75% of which will paid in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) cash, and (yiii) the leasing or subleasing Net Cash Proceeds thereof are applied as required by Section 2.14(a); provided further, that for the purposes of real property in the ordinary course of business;
clause (e) Dispositions of surplusii), obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 Personthe Borrower’s most recent balance sheet or statement of financial position (provided hereunder or in the notes footnotes thereto)) of the Borrower that are assumed by the transferee of any such assets with respect to the applicable Asset Sale and for which the Borrower and/or its applicable Restricted Subsidiary and all of the Subsidiaries shall have been validly released by all relevant applicable 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 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 writing and (zB) any Designated Non-Cash Consideration received in respect of such Disposition Asset Sale having an aggregate fair market valuevalue as reasonably determined by the Borrower in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (zB) that is at that time outstanding, not in excess of the greater of (x) $105,000,000 4,000,000 and 0.75(y) an amount equal to 4% of TTM Consolidated Total Assets as Adjusted EBITDA of the last day Borrower on a Pro Forma Basis at the time of the most recently ended Test Periodreceipt 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 each casevalue, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), cash;
(f) the Borrower and the Subsidiaries may lease (as lessee) or license (as licensee) real or personal property, in each case in the ordinary course of business, so long as any such lease or license does not create a Finance Lease except to the extent permitted by Section 6.1(d);
(g) exists any transaction (other than an Asset Sale) in connection with a Permitted Acquisition or other Investment permitted by Section 6.6; provided that if the merging or consolidating Subsidiary is a Guarantor Subsidiary, the surviving entity is or becomes a Guarantor Subsidiary;
(h) sales, leases, assignments, conveyances, transfers, licenses, exchanges or dispositions of other assets for aggregate consideration of less than the greater of $10,000,000 and (y) 10% of TTM Consolidated Adjusted EBITDA on a Pro Forma Basis as of the applicable date of determination in the aggregate during any Fiscal Year so long as the Net Cash Proceeds of such Disposition shall be therefrom are applied and/or reinvested as (and pursuant to the extent) required by Section 2.11(b)(ii2.14(a);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price dispositions of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures Joint Ventures to the extent required by, or made pursuant to, customary buy/sell arrangements agreements between the joint venture Joint Venture parties set forth in joint venture arrangements and similar binding arrangementsagreements between such parties;
(j) other than during the Covenant Adjustment Period, dispositions in connection with a Permitted Reorganization or Permitted IPO Reorganization;
(k) Dispositions any transaction in connection with each of notes receivable or accounts receivable in the ordinary course of business Oyster Mergers, the Oyster Reorganization and the Oyster Debt Assumption; and
(including l) any discount and/or forgiveness thereof) or transaction in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leasesCartiHeal Equity Purchase and the CartiHeal Reorganization. Notwithstanding anything to the contrary contained in this Section 6.8, subleases, licenses or sublicenses (including it is understood and agreed among the provision of software under any open source license), parties to this Agreement that (i) other than during the Disposition or termination of which will not materially interfere with the business of Covenant Adjustment Period, the Borrower or any Subsidiary may effect a Permitted Reorganization or Permitted IPO Reorganization and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and may change its Restricted Subsidiaries corporate identity or type of organization (y) non-core assets or unnecessary e.g., convert from a limited liability company to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdictiona corporation), of assets so long as such change does not result in the Borrower ceasing to be organized under the Laws of the United States, any such exchange state thereof or swap is made for fair value (as reasonably determined by the Borrower) for like assetsDistrict of Columbia; provided that, upon the consummation of any such exchange or swap by any Loan Party, with respect to the extent the assets received do not constitute an Excluded Assetclause (ii), the Administrative Borrower will notify the Collateral Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereofSection 6.1 of the Pledge and Security Agreement.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of mergermerge, consolidation or amalgamationconsolidate, consummate a Division as the Dividing Personamalgamate, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any voluntary Disposition of assets outside the ordinary course of business having a fair market value in excess of the greater of $17,500,000 and 20% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period in any assetssingle transaction or series of related transactions (including, in each case, pursuant to a Delaware LLC Division), except:
(a) (i) the Borrower or any Subsidiary Guarantor may be merged, consolidated or amalgamated with another Person or, if applicable, effect a Delaware LLC Division, or any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiariesif applicable, such effect a Delaware LLC Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a); provided that that:
(Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower or any Delaware LLC Division relating to the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation consolidation, amalgamation or amalgamation Delaware LLC Division is not the Borrower (any such Person, the “Successor Borrower”), (x1) the Successor Borrower shall be an entity organized or existing under the law of the U.S.US, any state thereof or the District of Columbia, (y2) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z3) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing 156156 WXXX:\98093729\19\40590.0004 conditions under clauses (x1) through (z3) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and and
(Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower any Subsidiary Guarantor or any Delaware LLC Division relating to any Subsidiary Guarantor, either (1A) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person (or, in the case of an amalgamation, the Person formed as a result thereof) shall expressly assume the obligations of the Borrower or such Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2B) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including ); provided that if the relevant Disposition is to a Restricted Subsidiary that is not a Loan Party, the relevant transaction shall be treated as a result of a Division)an Investment and shall comply with Section 6.06;
(i) the liquidation liquidation, dissolution or dissolution Delaware LLC Division of any Restricted Subsidiary if the Borrower determines in good faith that (A) such liquidation liquidation, dissolution or dissolution Delaware LLC Division is in the best interests of the Borrower, Borrower and (B) is not materially disadvantageous to the Lenders and (taken as a whole) and
(ii) the Borrower or any Restricted Subsidiary receives any the assets (if any) of the relevant liquidated, dissolved or liquidated divided Restricted Subsidiary; provided that in the case of any liquidation liquidation, dissolution or dissolution Delaware LLC Division of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation liquidation, consolidation or consolidationDelaware LLC Division, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.066.06 (other than Section 6.06(j)); and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not not, in the good faith determination of the Borrower, adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property equipment or assets, inventory, equipment and other immaterial assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable good faith judgment of the Borrower, is (Ai) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (Bii) otherwise economically impracticable to maintain, including any property abandoned in connection with the termination of any lease;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (wor would result in) (i) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (xii) Permitted Liens and (yiii) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that provided, that
(i) with respect to any such Disposition involving assets (other than any Permitted Asset Swap) with a purchase price in excess of the greater of $45,000,000 10,000,000 and 0.3510% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 75% of the consideration for such 157157 WXXX:\98093729\19\40590.0004 Disposition (other than the portion of any such Disposition consisting of a Permitted Asset Swap) shall consist of Cash or Cash Equivalents Equivalents;
(provided that ii) for purposes of the 75% Cash consideration requirement, requirement described immediately above:
(wA) 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 in the notes thereto)) that are assumed by the transferee of any such assets (or that are otherwise terminated or cancelled in connection with the transaction with such transferee) and for which the Borrower and/or its applicable Restricted Subsidiary have been validly released by all relevant creditors in writing, ,
(xB) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, ,
(yC) any Securities Security received by the Borrower or any Restricted Subsidiary from such transferee that are will be 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 Disposition, and
(zD) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (zD) that is at that time outstanding, not in excess of the greater of $105,000,000 25,000,000 and 0.7530% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);.
(i) Dispositions to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions Dispositions, discounting or forgiveness of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness to insurers which have provided insurance as to the collection thereof) or in connection with the collection or compromise thereofthereof (including sales to factors);
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries (taken as a whole) or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;; 158158 WXXX:\98093729\19\40590.0004
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)[reserved];
(q) Disposition Dispositions of any non-core (as determined by the Borrower in good faith) assets (i) acquired in a connection with any acquisition or other investment Investment permitted hereunder and sales of Real Estate Assets acquired in any acquisition or other Investment permitted hereunder; provided, which assets are that no Event of Default under Section 7.01(a), (xf) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (yg) non-core assets or unnecessary to exists on the business or operations of date on which the Borrower and its Restricted Subsidiaries or (ii) made in connection with definitive agreement governing the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the BorrowerBorrower in good faith) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped(including Related Business Assets);
(s) [reserved]Dispositions of assets that do not constitute Collateral for fair market value;
(i) any Disposition, licensing, sublicensing and and/or cross-licensing arrangements arrangement involving any technology or IP Rights Right of the Borrower or any Restricted Subsidiary in the ordinary course of business and business, and
(ii) Dispositionsany Disposition, abandonmentsabandonment, cancellations cancellation or lapses lapse of any IP RightsRight, or issuances any issuance or registrationsregistration, or applications application for issuances issuance or registrationsregistration, of any IP RightsRight, which, in the reasonable business judgment good faith determination of the Borrower, are Borrower is not material to the conduct of the business of the Borrower or and its Restricted Subsidiaries, taken as a whole, or are is no longer economical to maintain in light of its use;
(u) terminations any termination or unwinds unwind of Derivative TransactionsTransactions or Banking Services Obligations;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of LawLaw (including as a condition to, or in connection with, the consummation of the Transactions);
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Restricted Subsidiary in another jurisdiction in the U.S. US and/or (ii) any Foreign Subsidiary in the U.S. US or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 10,000,000 and 0.3610% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding the next Fiscal Years;Year; 159159 WXXX:\98093729\19\40590.0004
(bb) so long Dispositions in connection with reorganizations and/or restructurings and/or activities related to tax planning; provided that, after giving effect to any such reorganization, restructuring or activity, in the good faith determination of the Borrower, neither the Loan Guaranty, taken as a whole, nor the security interest of the Administrative Agent in the Collateral, taken as a whole, is materially impaired;
(cc) Dispositions of assets in connection with the closing or sale of an office in the ordinary course of business of the Borrower would be and the Restricted Subsidiaries, which consist of leasehold interests in compliance with Section 6.13(a) on a Pro Forma Basisthe premises of such office, any Disposition the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of Securitization Assets to a Securitization Subsidiarysuch office; provided, that any such Disposition sale shall be for no less than at a commercially reasonable price and on commercially reasonable terms in a bona fide arm’s-length transaction;
(dd) [reserved];
(ee) Sale and Lease-Back Transactions; provided, the fair market value of such all property at so Disposed of after the time Closing Date shall not exceed the greater of such Disposition $30,000,000 and 35% of Consolidated Adjusted EBITDA as determined by of the Borrower in good faith; andlast day of the most recently ended Test Period;
(ccff) [reserved];
(gg) any Disposition of Securitization Assets any Receivables Facility Asset (other than to a Securitization Subsidiaryand/or any participation therein) or related assets in connection with any Qualified Securitization FinancingReceivables Facility;
(hh) [reserved];
(ii) the settlement or early termination of any Permitted Bond Hedge Transaction and/or any related Permitted Warrant Transaction; and (jj) Dispositions of any asset acquired with the proceeds of an Available Excluded Contribution Amount. To It is understood and agreed that (a) to the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party6.07, such Collateral shall be sold Disposed of free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood , and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate action reasonably requested by the Borrower in order to effect the foregoing; provided, that in the case of a Disposition made to any Loan Party, the relevant transferred assets shall become part of the Collateral of the transferee Loan Party (except to the extent such assets constitute Excluded Assets), (b) any determination of the fair market value of any asset other than Cash for purposes of this Section 6.07 shall be made by the Borrower in good faith at its election either (1) at the time of the execution of the definitive agreement governing such Disposition or (2) the date on which such Disposition is consummated and (c) notwithstanding the foregoing in accordance with Article 8 hereofprovisions of this Section 6.07, this Section 6.07 shall not permit an IP Separation Transaction.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition Disposition, in a single transaction or in a series of any assetsrelated transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Surviving Person shall expressly assume the guarantee obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary or change in form of entity if the Borrower determines in good faith that such liquidation or dissolution or change in form of entity is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary may be converted into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Liens, Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and Sale-Leaseback Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 2,000,000 and 0.351.0% of Consolidated Total Assets Adjusted EBITDA of the Borrower and its Restricted Subsidiaries as of the last day of the most recently ended Test Period calculated on a Pro Forma Basisfor which financial statements have been delivered pursuant to Sections 5.01(a) or (b), as applicable, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 3,500,000 and 0.751.0% of Consolidated Total Assets Adjusted EBITDA of the Borrower and its Restricted Subsidiaries as of the last day of the most recently ended Test PeriodPeriod for which financial statements have been delivered pursuant to Sections 5.01(a) or (b), as applicable, in each case, shall be deemed to be Cash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists shall exist and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures Joint Ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture Joint Venture or similar parties set forth in joint venture the relevant Joint Venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), which (i) the Disposition or termination of which will do not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)[Reserved];
(q) Disposition Dispositions of any non-core assets (i) acquired in a connection with any acquisition or other investment permitted hereunderhereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, which assets within 90 days of the date of such acquisition, are (x) designated in writing to the Administrative Agent as being held for sale and not used or useful in for the ordinary course or the principal business continued operation of the Borrower and or any of its Restricted Subsidiaries or any of their respective businesses; provided that (yi) non-core assets or unnecessary the Net Proceeds received in connection with any such Disposition shall be applied and/or reinvested as (and to the business or operations of the Borrower extent required) by Section 2.11(b)(ii) and its Restricted Subsidiaries or (ii) made in connection with no Event of Default exists on the approval of any applicable antitrust authority or otherwise necessary or advisable in date on which the good faith determination of definitive agreement governing the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like property or assets; provided that, that (i) upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets property received do does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swappedswapped and (ii) any Net Proceeds received as “cash boot” in connection with any such transaction shall be applied and/or reinvested as (and to the extent required) by Section 2.11(b)(ii);
(s) [reservedReserved];
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority agency of the U.S. Federal government, any state, authority or other regulatory body or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdictionU.S.;
(z) [Reserved];
(aa) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aabb) other Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) in the aggregate since the Closing Date of not more than the greater of $50,000,000 2,000,000 and 0.361.0% of Consolidated Total Assets Adjusted EBITDA of the Borrower and its Restricted Subsidiaries as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Yearfor which financial statements have been delivered pursuant to Sections 5.01(a) or (b), which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faithapplicable; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingDispositions contemplated on the Closing Date and described on Schedule 6.07 hereto. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall automatically be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereofforegoing.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value (as reasonably determined in good faith by the Borrower) in excess of $10,000,000 in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary Subsidiary, and the Borrower may be merged, consolidated or amalgamated with or into any other Person (ii) including any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(aSubsidiary); provided that (A) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1i) the Borrower shall be the continuing or surviving Person or (2ii) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (xw) the Successor Borrower shall be an entity organized or existing under the law laws of the U.S.US, any state thereof or the District of Columbia, (yx) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent, (y) the Administrative Agent shall have a security interest in the Collateral for the benefit of the Secured Parties pursuant to the Collateral Documents that is perfected to at least the same extent as in effect immediately prior to such merger, consolidation or amalgamation and all actions reasonably requested by the Administrative Agent to maintain such perfected status have been or will promptly be taken (subject to the terms of the applicable Loan Documents), and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (xw) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital StockStock issued by any Restricted Subsidiary) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division);
(c) (i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the BorrowerBorrower or such Restricted Subsidiary, is not materially disadvantageous to the Lenders Lenders, and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause Section 6.07(a) or (b) or this clause (cSection 6.07(c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entityentity (and solely with respect to the Borrower, organized in the US, any state thereof or the District of Columbia), so long as such conversion does not adversely affect the value of the Guarantees under the Loan Guaranty or the Collateral, if anytaken as a whole;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of including on an intercompany basis among the Borrower and its Restricted Subsidiaries) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (Ai) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (Bii) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and Liens, (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) or (z) Sale and Lease-Back Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 15,000,000 and 0.3510.0% of Consolidated Total Assets as Adjusted EBITDA of the last day of Borrower for the most recently ended Test Period calculated on a Pro Forma BasisPeriod, either (A) at least 75% of the consideration for such Disposition all Dispositions consummated pursuant to this Section 6.07(h) since the Closing Date shall consist of Cash or Cash Equivalents or (B) at least 50% of the consideration for all Dispositions consummated pursuant to this Section 6.07(h) since the Closing Date shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% or 50% Cash consideration requirement, as applicable, (w) the greater of the principal amount and carrying value of any Indebtedness or other liabilities (other than Indebtedness as reflected on the most recent balance sheet of the Borrower (or other a Parent Company) provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that are subordinated would have been reflected on the balance sheet of the Borrower (or Parent Company) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the Obligations or that are owed to date of such balance sheet, as determined in good faith by the Borrower or any Restricted SubsidiaryBorrower) of the Borrower or any such Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in Subsidiary, other than liabilities that are by their terms subordinated to the notes thereto)) Obligations, that are assumed by the transferee of any such assets and for (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases the Borrower and/or its applicable or such Restricted Subsidiary have been validly released by all relevant creditors in writingfrom such liabilities, (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 Restricted Subsidiary from such the 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 in respect of such Disposition having an aggregate fair market valuevalue (as reasonably determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) and Section 6.08(b) that is at that time outstanding, not in excess of the greater of $105,000,000 30,000,000 and 0.7520.0% of Consolidated Total Assets as Adjusted EBITDA of the last day of Borrower for the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (yi) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositionsfor purposes of calculating the amount of prepayments required under Section 2.11(b)(ii) with the Net Proceeds of Dispositions consummated pursuant to clause (B) of this Section 6.07(h), abandonments, cancellations or lapses the Borrower shall not be entitled to deduct from the calculation of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, such Net Proceeds any amounts reinvested in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light any of its usesubsidiaries);
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.
Appears in 1 contract
Samples: First Lien Credit Agreement (Waystar Holding Corp.)
Fundamental Changes; Disposition of Assets. The Borrower shall (a) Holdings will not, nor shall it and will not permit any of its Restricted Subsidiaries Subsidiary to, enter into any transaction of merger, consolidation merge or amalgamation, consummate a Division as the Dividing Personconsolidate, or liquidate, wind wind-up or dissolve themselves itself (or suffer any liquidation or dissolution), or sell, transfer, lease or otherwise make dispose of all or any Disposition part of its assets (including any assetsEquity Interest), whether now owned or hereafter acquired, leased or licensed, except:
(a) (i) any Restricted Subsidiary Person may be merged, consolidated or amalgamated with or merge into the Borrower in a transaction in which the Borrower is the surviving entity; provided that any such merger or any other Restricted consolidation involving a Person that is not a wholly owned Subsidiary and immediately prior thereto shall not be permitted unless it is also permitted under Section 6.6;
(ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(aHoldings or the Borrower) may merge into or consolidate with any Subsidiary (other than the Borrower) in a transaction in which the surviving entity is a Subsidiary (and, if any party to such merger or consolidation is a Guarantor Subsidiary, is a Guarantor Subsidiary); provided that (A) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1) the Borrower shall be the continuing or surviving Person or (2) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into the Borrower or any involving a Person that is not a wholly owned Subsidiary Guarantor, either (1) the Borrower or a Subsidiary Guarantor immediately prior thereto shall not be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2) the relevant transaction shall be treated as an Investment and shall comply with permitted unless it is also permitted under Section 6.066.6;
(biii) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation other than the Borrower) may liquidate or otherwise) (including as a result of a Division);
(i) the liquidation or dissolution of any Restricted Subsidiary dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or in any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Division, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if anymaterial respect;
(div) (x) Dispositions sales, transfers and other dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) and (y) the leasing or subleasing of real property surplus equipment, Cash in the ordinary course of business;
(ev) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintainInvestments permitted under Section 6.6;
(fvi) Dispositions sales, transfers or other dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when accounts receivable in connection with the relevant original Investment was madecompromise or collection thereof in the ordinary course of business and not as part of any accounts receivables financing transaction;
(gvii) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess dispositions of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) property to the extent that (iA) the relevant such property is exchanged for credit against the purchase price of similar replacement property or (iiB) the proceeds of the relevant Disposition such disposition are promptly applied to the purchase price of such replacement property;
(jviii) Dispositions of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable grants in the ordinary course of business (including any discount and/or forgiveness thereof) of licenses, sublicenses, leases or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will subleases not materially interfere interfering with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of Holdings and the Borrower Subsidiaries and its Restricted Subsidiaries not affecting the security interest of the Collateral Agent in the asset or property subject thereto; and
(iiix) sales, transfers, leases and other dispositions of assets that are not permitted by any other clause of this Section 6.8(a); provided that (A) the aggregate fair value of all assets sold, transferred, leased or otherwise disposed of in reliance on this clause (ix) shall not exceed $10,000,000 during any Fiscal Year of Holdings, (B) all sales, transfers, leases and other dispositions made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
reliance on this clause (rix) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is shall be made for fair value and at least 75% cash consideration and (C) the Net Proceeds thereof shall be applied as reasonably determined required by the BorrowerSection 2.13.
(b) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, Notwithstanding anything to the extent the assets received do not constitute an Excluded Assetcontrary set forth herein, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensingHoldings will not, sublicensing and cross-licensing arrangements involving will not permit any IP Rights Subsidiary to, sell, transfer or otherwise dispose of any Equity Interests in any Subsidiary unless (A) such Equity Interests constitute all the Borrower or any Restricted Equity Interests in such Subsidiary in held by Holdings and the ordinary course of business Subsidiaries and (iiB) Dispositionsimmediately after giving effect to such transaction, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in Holdings and the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, Subsidiaries shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would otherwise be in compliance with Section 6.13(a6.7 and (ii) on a Pro Forma BasisHoldings will not permit any Subsidiary to issue any additional Equity Interests in such Subsidiary, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than (i) to a Securitization SubsidiaryHoldings or any Subsidiary in compliance with Section 6.6, (ii) or related assets in connection with any Qualified Securitization Financing. To the extent directors’ qualifying shares and (iii) other nominal amounts of Equity Interests that any Collateral is Disposed of as expressly permitted are required to be held by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereofPersons under applicable law.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of mergermerge, consolidation or amalgamationconsolidate, consummate a Division as the Dividing Personamalgamate, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any voluntary Disposition of assets outside the ordinary course of business having a fair market value in excess of the greater of $17,500,000 and 20% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period in any assetssingle transaction or series of related transactions (including, in each case, pursuant to a Delaware LLC Division), except:
(a) (i) the Borrower or any Subsidiary Guarantor may be merged, consolidated or amalgamated with another Person or, if applicable, effect a Delaware LLC Division, or any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiariesif applicable, such effect a Delaware LLC Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a); provided that that:
(Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower or any Delaware LLC Division relating to the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation consolidation, amalgamation or amalgamation Delaware LLC Division is not the Borrower (any such Person, the “Successor Borrower”), (x1) the Successor Borrower shall be an entity organized or existing under the law of the U.S.US, any state thereof or the District of Columbia, (y2) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z3) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x1) through (z3) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and and
(Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower any Subsidiary Guarantor or any Delaware LLC Division relating to any Subsidiary Guarantor, either (1A) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person (or, in the case of an amalgamation, the Person formed as a result thereof) shall expressly assume the obligations of the Borrower or such Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2B) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including ); provided that if the relevant Disposition is to a Restricted Subsidiary that is not a Loan Party, the relevant transaction shall be treated as a result of a Division)an Investment and shall comply with Section 6.06;
(i) the liquidation liquidation, dissolution or dissolution Delaware LLC Division of any Restricted Subsidiary if the Borrower determines in good faith that (A) such liquidation liquidation, dissolution or dissolution Delaware LLC Division is in the best interests of the Borrower, Borrower and (B) is not materially disadvantageous to the Lenders (taken as a whole) and (ii) the Borrower or any Restricted Subsidiary receives any the assets (if any) of the relevant liquidated, dissolved or liquidated divided Restricted Subsidiary; provided that in the case of any liquidation liquidation, dissolution or dissolution Delaware LLC Division of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation liquidation, consolidation or consolidationDelaware LLC Division, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.066.06 (other than Section 6.06(j)); and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not not, in the good faith determination of the Borrower, adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property equipment or assets, inventory, equipment and other immaterial assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable good faith judgment of the Borrower, is (Ai) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (Bii) otherwise economically impracticable to maintain, including any property abandoned in connection with the termination of any lease;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (wor would result in) (i) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (xii) Permitted Liens and (yiii) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that provided, that
(i) with respect to any such Disposition involving assets (other than any Permitted Asset Swap) with a purchase price in excess of the greater of $45,000,000 10,000,000 and 0.3510% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 75% of the consideration for such Disposition (other than the portion of any such Disposition consisting of a Permitted Asset Swap) shall consist of Cash or Cash Equivalents Equivalents;
(provided that ii) for purposes of the 75% Cash consideration requirement, requirement described immediately above:
(wA) 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 in the notes thereto)) that are assumed by the transferee of any such assets (or that are otherwise terminated or cancelled in connection with the transaction with such transferee) and for which the Borrower and/or its applicable Restricted Subsidiary have been validly released by all relevant creditors in writing, ,
(xB) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, ,
(yC) any Securities Security received by the Borrower or any Restricted Subsidiary from such transferee that are will be 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 Disposition, and
(zD) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (zD) that is at that time outstanding, not in excess of the greater of $105,000,000 25,000,000 and 0.7530% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);.
(i) Dispositions to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions Dispositions, discounting or forgiveness of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness to insurers which have provided insurance as to the collection thereof) or in connection with the collection or compromise thereofthereof (including sales to factors);
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries (taken as a whole) or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)[reserved];
(q) Disposition Dispositions of any non-core (as determined by the Borrower in good faith) assets (i) acquired in a connection with any acquisition or other investment Investment permitted hereunder and sales of Real Estate Assets acquired in any acquisition or other Investment permitted hereunder; provided, which assets are that no Event of Default under Section 7.01(a), (xf) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (yg) non-core assets or unnecessary to exists on the business or operations of date on which the Borrower and its Restricted Subsidiaries or (ii) made in connection with definitive agreement governing the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the BorrowerBorrower in good faith) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped(including Related Business Assets);
(s) [reserved]Dispositions of assets that do not constitute Collateral for fair market value;
(i) any Disposition, licensing, sublicensing and and/or cross-licensing arrangements arrangement involving any technology or IP Rights Right of the Borrower or any Restricted Subsidiary in the ordinary course of business business, and (ii) Dispositionsany Disposition, abandonmentsabandonment, cancellations cancellation or lapses lapse of any IP RightsRight, or issuances any issuance or registrationsregistration, or applications application for issuances issuance or registrationsregistration, of any IP RightsRight, which, in the reasonable business judgment good faith determination of the Borrower, are Borrower is not material to the conduct of the business of the Borrower or and its Restricted Subsidiaries, taken as a whole, or are is no longer economical to maintain in light of its use;
(u) terminations any termination or unwinds unwind of Derivative TransactionsTransactions or Banking Services Obligations;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of LawLaw (including as a condition to, or in connection with, the consummation of the Transactions);
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Restricted Subsidiary in another jurisdiction in the U.S. US and/or (ii) any Foreign Subsidiary in the U.S. US or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 10,000,000 and 0.3610% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding the next Fiscal YearsYear;
(bb) so long Dispositions in connection with reorganizations and/or restructurings and/or activities related to tax planning; provided that, after giving effect to any such reorganization, restructuring or activity, in the good faith determination of the Borrower, neither the Loan Guaranty, taken as a whole, nor the security interest of the Administrative Agent in the Collateral, taken as a whole, is materially impaired;
(cc) Dispositions of assets in connection with the closing or sale of an office in the ordinary course of business of the Borrower would be and the Restricted Subsidiaries, which consist of leasehold interests in compliance with Section 6.13(a) on a Pro Forma Basisthe premises of such office, any Disposition the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of Securitization Assets to a Securitization Subsidiarysuch office; provided, that any such Disposition sale shall be for no less than at a commercially reasonable price and on commercially reasonable terms in a bona fide arm’s-length transaction;
(dd) [reserved];
(ee) Sale and Lease-Back Transactions; provided, the fair market value of such all property at so Disposed of after the time Closing Date shall not exceed the greater of such Disposition $30,000,000 and 35% of Consolidated Adjusted EBITDA as determined by of the Borrower in good faith; andlast day of the most recently ended Test Period;
(ccff) [reserved];
(gg) any Disposition of Securitization Assets any Receivables Facility Asset (other than to a Securitization Subsidiaryand/or any participation therein) or related assets in connection with any Qualified Securitization FinancingReceivables Facility;
(hh) [reserved];
(ii) the settlement or early termination of any Permitted Bond Hedge Transaction and/or any related Permitted Warrant Transaction; and (jj) Dispositions of any asset acquired with the proceeds of an Available Excluded Contribution Amount. To It is understood and agreed that (a) to the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party6.07, such Collateral shall be sold Disposed of free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood , and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate action reasonably requested by the Borrower in order to effect the foregoing; provided, that in the case of a Disposition made to any Loan Party, the relevant transferred assets shall become part of the Collateral of the transferee Loan Party (except to the extent such assets constitute Excluded Assets), (b) any determination of the fair market value of any asset other than Cash for purposes of this Section 6.07 shall be made by the Borrower in good faith at its election either (1) at the time of the execution of the definitive agreement governing such Disposition or (2) the date on which such Disposition is consummated and (c) notwithstanding the foregoing in accordance with Article 8 hereofprovisions of this Section 6.07, this Section 6.07 shall not permit an IP Separation Transaction.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Lead Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets in a single transaction or in a series of related transactions, except:
(a) (i) 6.7.1. any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Lead Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the US Borrower, (1A) the US Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the US Borrower (any such Person, the “US Successor Borrower”), (xw) the US Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (yx) the US Successor Borrower shall expressly assume the Obligations of the US Borrower in a manner reasonably satisfactory to the Administrative Agent and concurrently with the consummation of such merger, consolidation or amalgamation, 100% of the Capital Stock of the US Successor Borrower shall be pledged to the Administrative Agent for the benefit of the Secured Parties, (y) the US Successor Borrower shall have complied with the Collateral and Guarantee Requirement and Perfection Requirements (as if such Person were a newly formed Restricted Subsidiary that is not an Excluded Subsidiary), and (z)
(1) except as the Administrative Agent may otherwise agree, each GuarantorLoan Party, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents, (2) upon its reasonable request, the Administrative Agent shall have received customary legal opinions, (3) the Administrative Agent and each requesting Lender shall have received at least three (3) Business Days prior to such Person becoming the US Successor Borrower all documentation and other information in respect of the US Successor Borrower required under applicable “know your customer” and anti-money laundering rules and regulations (including the USA Patriot Act) and (4) if the US Successor Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, then such Person shall have delivered to the Administrative Agent and each requesting Lender a Beneficial Ownership Certification in relation to such Person; it being understood and agreed that if the foregoing conditions under clauses (xw) through (z) are satisfied, the US Successor Borrower will succeed to, and be substituted for, the US Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary GuarantorCanadian Borrower, either (1A) the Canadian Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or (B) if the continuing Person formed by or surviving Person any such merger, consolidation or amalgamation is not the Canadian Borrower (any such Person, a “Canadian Successor Borrower”), (w) the Canadian Successor Borrower shall be a Canadian Person, (x) the Canadian Successor Borrower shall expressly assume the obligations Obligations of the Canadian Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or Agent, (2y) the relevant transaction Canadian Successor Borrower shall be treated have complied with the Collateral and Guarantee Requirement and Perfection Requirements (as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as if such Person were a result of a Division);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any newly formed Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Division, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted SubsidiariesExcluded Subsidiary) and (y) the leasing or subleasing of real property in the ordinary course of business;z)
(e1) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets except as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with may otherwise agree, each applicable Guarantor, unless it is the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material other party to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any such merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.,
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor and it shall it not permit any of its Restricted Subsidiaries other Loan Party to, enter into any transaction of merger, consolidation merge or amalgamation, consummate a Division as the Dividing Personconsolidate, or liquidate, wind up wind‑up or dissolve themselves itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub‑lease (as lessor or sublessor), exchange, transfer or otherwise make dispose of, in one transaction or a series of transactions, all or any Disposition part of its business, assets or property of any assetskind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, except:
(a) (x) (i) any Restricted Subsidiary Guarantor may be mergedliquidated, consolidated wound up or amalgamated dissolved, with the result that its assets (including licenses), if any, and ongoing business are distributed to the Borrower or any other Subsidiary Guarantor, (ii) all or any part of any Subsidiary Guarantor’s business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to the Borrower or any other Subsidiary Guarantor or (iii) any Subsidiary Guarantor may be merged with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person ifGuarantor; provided, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a); provided that (A) in the case of any such merger, consolidation or amalgamation with or into merger involving the Borrower, (1) the Borrower shall be the continuing or surviving Person or (2y) so long as no Default or Event of Default exists or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that if the Person formed by or surviving any such merger, merger or consolidation or amalgamation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (xA) the Successor Borrower Company shall be an entity organized or existing under the law laws of the U.S.United States of America, any state State thereof or the District of Columbia, (yB) the Successor Borrower Company shall expressly assume all the Obligations obligations of the Borrower in under this Agreement and the other Loan Documents to which the Borrower is a manner party pursuant to a supplement hereto or thereto reasonably satisfactory to the Administrative Agent and the Collateral Agent, (zC) except as the Administrative Agent may otherwise agree, each Subsidiary Guarantor, unless it is the other party to such merger, consolidation or amalgamationSuccessor Company, shall have executed and delivered a reaffirmation agreement with respect confirmed that its Subsidiary Guaranty shall apply to its the Successor Company’s obligations under the Loan Documents, (D) each Subsidiary Guarantor, unless it is the Successor Company, shall have, by a supplement to the Pledge and Security Agreement and other applicable Security Documents, confirmed that its obligations thereunder shall apply to its guarantee of the Successor Company’s obligations under the Loan Documents, (E) the Equity Pledgor shall have confirmed that the Equity Pledge Agreement shall apply to the Successor Company’s obligations under the Loan Documents, (F) the Equity Pledgor shall have, by a supplement to the Equity Pledge Agreement and other applicable Security Documents, confirmed that its obligations thereunder shall apply to its guarantee of the Successor Company’s obligations under the Loan Documents, (G) the Completion Guarantor shall have confirmed that its Completion Guaranty shall apply to the Successor Company’s obligations under the Loan Documents, (H) the Completion Guarantor shall have, by a supplement to the Completion Guaranty and other applicable Security Documents, confirmed that its obligations thereunder shall apply to its guarantee of the Successor Company’s obligations under the Loan Documents, and (I) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel as to the enforceability of this Agreement, the Pledge and Security Agreement, the Subsidiary Guaranty, the Equity Pledge Agreement, the Completion Guaranty and the other Loan Security Documents as so supplemented and the perfection of the Liens under the Security Documents; it being understood and agreed provided, further, that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including conveyances, sales, leases, subleases, exchanges, transfers or other dispositions of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division)assets that do not constitute Asset Sales;
(ic) Asset Sales, the liquidation or dissolution proceeds of any Restricted Subsidiary if which (valued at the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that principal amount thereof in the case of any liquidation non‑Cash proceeds consisting of notes or dissolution other debt Securities and valued at fair market value in the case of any Loan Party that results in a distribution other non‑Cash proceeds), when aggregated with the proceeds of all other Asset Sales made during the term of this Agreement, are less than $20,000,000; provided (1) the consideration received for such assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as in an Investment and shall comply with Section 6.06 amount at least equal to the fair market value thereof (other than in reliance on clause (j) thereof); (ii) any merger or Division, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrowerapplicable Loan Party), (2) no less than 75% thereof shall be paid in Cash and/or Cash Equivalents, (3) in no event shall any such Asset Sale involve any Real Property (except as permitted pursuant to clauses (f) and property (g) below) or assets no longer used or useful materially and adversely affect the Loan Parties’ ability (x) if prior to the Completion Date, to develop, construct and operate the Project in accordance in all material respects with the ordinary course or Plans and Specifications and the principal business of the Borrower and its Restricted Subsidiaries) Loan Documents and (y) if on or after the leasing Casino Opening Date, to operate the Project as contemplated by the Loan Documents and (4) the Net Cash Proceeds thereof shall be applied as required by Section 2.13(a);
(d) the sale of past-due receivables for purposes of collection;
(e) conveyances, sales, leases, subleases, exchanges, transfers or subleasing other dispositions of real property equipment valued at not more than $500,000 in the aggregate in any Fiscal Year to employees of the Loan Parties in the ordinary course of business;
(ef) Dispositions the XXX Lease Agreement and other space leases or subleases of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment portions of the BorrowerReal Property owned or leased by the Loan Parties, is (A) no longer useful entered into by the applicable Loan Party in its business (or in accordance with the business provisions of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;Section 6.03(b); and
(g) Dispositionsthe dedication of Real Property or other sales, mergers, Divisions, amalgamations, consolidations assignments or conveyances that constitute dispositions of Real Property (w) Investments permitted including pursuant to Section 6.06 a lease or sublease and/or pursuant to amendment to the Ground Lease, the Entertainment Village Lease or the Golf Course Lease to reduce the Real Property subject thereto) not to exceed 30 acres of Real Property in the aggregate, so long as such dedications, sales, assignments and/or dispositions do not materially impair or interfere with, the operations (or intended use or operations) of the Project or the business operations of any Loan Party, do not relate to Real Property upon which the principal improvements related to the Project are located and no gaming or casino operations (other than Section 6.06(j)the operation of arcades and games for minors) may be conducted on any Real Property that is subject to such dedications, sales, assignments and/or dispositions; provided that in order to accomplish the foregoing the Loan Parties may record, or cause to be recorded, lot line adjustments and/or subdivide the Real Property so long as (i) in the case of any such subdivision, such real property is subdivided such that it will represent a separate municipal tax parcel independent of the remainder of the Real Property of the Loan Parties, (ii) such lot line adjustment or subdivision does not render the remainder of the Real Property (or any portion thereof), or the operations thereon, as non-conforming under applicable zoning and land use ordinances, and does not otherwise result in the violation in any material respect of any applicable variances, special exceptions, conditional use approvals, covenants, conditions, restrictions or any other Legal Requirements or approvals to which the remainder of the Real Property (xor any portion thereof) Permitted Liens or the operations thereon or the Loan Parties are subject and (yiii) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market valuethe Loan Parties have received all necessary governmental approvals with respect to such lot line adjustment or subdivision, including from the Gaming Authorities; provided provided, further that with respect to any such Disposition involving assets with a purchase price dedications, sales, assignments and/or dispositions (A) the remaining Real Property and/or the Loan Parties have been given all easements and other rights-of-way across any Real Property so dedicated, sold, assigned or otherwise disposed of as necessary or, in excess the reasonable determination of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as Borrower, desirable for the continued operations of the last day Project, including legal and physical access to public rights of the most recently ended Test Period calculated on a Pro Forma Basisway and with respect to utilities, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents ingress and egress and fire and safety access and (provided that for purposes of the 75% Cash consideration requirement, (wB) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated Collateral Agent shall have received affirmative endorsements to the Obligations or that are owed title insurance policies with respect to the Borrower remaining Real Property 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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Periodevidence, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists case in form and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and substance reasonably satisfactory to the extent) required by Section 2.11(b)(ii);
(i) to Administrative Agent, confirming that the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds Lien of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements Mortgages and similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business coverage of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) title insurance policies with respect to facilities that are temporarily the remaining Real Property have not in usebeen impaired by such dedication, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition sale, assignment or other investment permitted hereunderdisposition and/or lot line adjustment or subdivision, which assets are as the case may be (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Partyand, to the extent the assets received do not constitute an Excluded Assetamendment, modification or other supplement to any Mortgage is required with respect thereto, including for purposes of amending legal descriptions attached to any Mortgage, the Administrative Agent has a perfected Lien with shall direct (without the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights consent of the Borrower or any Restricted Subsidiary in Lenders) the ordinary course of business and (ii) DispositionsCollateral Agent to make such amendments, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness modifications or other Securities of, Unrestricted Subsidiaries;
supplements thereto (w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood that any such amendments, modifications or other supplements must be in form and agreed that substance reasonably satisfactory to the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereofAgent)).
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assets, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person ifSubsidiary; provided, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a); provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (v) written notice of such merger, consolidation or amalgamation must be provided to the Administrative Agent at least ten (10) Business Days prior to the effectiveness thereof, (w) the Borrower shall have delivered to the Administrative Agent all documentation and other information requested by the Administrative Agent (acting at the Direction of the Required Lenders) with respect to such Successor Borrower (including any Beneficial Ownership Certification) required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act and the Beneficial Ownership Regulation, no later than two Business Days prior to the date of such effectiveness (or such later date as may be agreed by the Administrative Agent (acting at the Direction of the Required Lenders)), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations all obligations of the Borrower in under this Agreement and the other Loan Documents to which it is a manner party pursuant to an agreement reasonably satisfactory to the Administrative Agent (acting at the Direction of the Required Lenders) and (z) except as the Administrative Agent (acting at the Direction of the Required Lenders) may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty Guarantee Agreement and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (xv) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation by, or with or into the Borrower or into, any Subsidiary Guarantor, either (1x) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person shall be a Subsidiary Guarantor or the continuing or surviving Person shall expressly assume the obligations of the Borrower or such Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent (acting at the Direction of the Required Lenders) or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.066.05 (other than in reliance on clause (j) thereof);
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided, that any such Disposition made by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by the Borrower) with at least 75.0% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.05 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, Borrower and is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted SubsidiaryLenders; provided provided, that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 6.05 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, consolidation, amalgamation, dissolution, dissolution or liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 6.06 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.066.05(j); and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, entity so long as as, in the case of any Loan Party, such conversion does not adversely affect materially impair the value Loan Guaranties, taken as a whole, or the security interest of the Loan Guaranty or Administrative Agent in the Collateral, if anytaken as a whole;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (Ai) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (Bii) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute or effect (wi) Investments permitted pursuant to Section 6.06 6.05 (other than Section 6.06(j6.05(j)), (xii) Permitted Liens Liens, and (yiii) Restricted Payments permitted by Section 6.04(a6.03(a) (other than Section 6.04(a)(ix6.03(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of value (as reasonably determined by the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 SubsidiaryBorrower) of the Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in 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 assets 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 in respect of such Disposition having an aggregate fair market valuevalue of not more than $1,000,000 in the aggregate for all such assets; provided, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75least 90% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, such consideration shall be deemed to be Cash)Cash or Cash Equivalents; provided, further, that (xA) on the date on which the agreement governing immediately prior to and after giving effect to such Disposition is executedDisposition, no Event of Default under Section 7.01(a), (f7.01(f) or (g7.01(g) exists and (yB) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii2.10(b)(ii);
(i) Dispositions of property to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in any joint ventures venture or any Subsidiary that is not a Wholly-Owned Subsidiary, in each case, to the extent required by, or made pursuant to, customary buy/sell arrangements between parties to such joint venture or equityholders in such Subsidiary set forth in the joint venture parties set forth in agreement, operating agreement, shareholders agreement or similar agreement governing such joint venture arrangements and similar binding arrangementsor such Subsidiary;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof[reserved];
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries Subsidiaries, taken as a whole, or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease lease, sublease, license or sublicense in the ordinary course of businessbusiness (and any related Disposition of improvements made to leased or sub-leased real property resulting therefrom), (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain condemnation, taking or condemnation proceedings (including in lieu thereof or any similar proceeding)event proceedings;
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)[reserved];
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder[reserved];
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair market value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and or cross-licensing arrangements involving any technology, software or IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of any technology, software or IP Rights, or any issuances or registrations, or any applications for issuances or registrations, of any IP Rights, which, in the reasonable business judgment good faith determination of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, Subsidiaries or are no longer economical to maintain in light of its their use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries[reserved];
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities of any Employee Related Person of any Parent Company, the Borrower and/or any Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Lawlaw;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction[reserved];
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;; and
(aa) Dispositions involving assets having a fair market value the Disposition of Class A Common Stock of MSP Recovery, Inc. (as reasonably determined by LIFW) to the Borrower at extent the time proceeds are applied in accordance with the terms of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingRSA. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 6.06 to any Person other than that is not a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof. Notwithstanding anything to the contrary contained in this Section 6.06, no Loan Party shall make any Disposition of Material Intellectual Property to any Subsidiary (other than another Loan Party); provided that nothing in this sentence shall prohibit any non-exclusive (other than exclusive distribution or other similar within a specified jurisdiction) license or sublicense of Material Intellectual Property to, or use of Material Intellectual Property by, any Subsidiary in the ordinary course of business. Notwithstanding the foregoing, no Dispositions of any asset or business unit of the Borrower or any Subsidiary are permitted without the prior written consent of the Required Lenders or the Administrative Agent (acting at the Direction of the Required Lenders).
Appears in 1 contract
Samples: Senior Secured Superpriority Debtor in Possession Credit Agreement (Cano Health, Inc.)
Fundamental Changes; Disposition of Assets. The Other than the Acquisition and the other Transactions, the Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value in excess of $6,250,000 in a single transaction or a series of related transactions and in excess of 12,500,000 in the aggregate for all such transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; , it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1A) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or such Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2B) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division);
(c) (i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); , (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; 6.06 and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or the Collateral, if any;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property equipment or assets, inventory, equipment and other immaterial assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and Liens, (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and (z) Sale and Lease-Back Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 18,750,000 and 0.3518.75% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in 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, (xii) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (yiii) any Securities Security received by the Borrower or any Restricted Subsidiary from such transferee that are is 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 (ziv) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (ziv) and clause (B)(1) of the proviso in Section 6.08 that is at that time outstanding, not in excess of the greater of $105,000,000 31,250,000 and 0.7531.25% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (xA) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (yB) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions to the extent otherwise restricted by this Section 6.07, the consummation of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)Transactions;
(q) Disposition Dispositions of any non-core assets (i) acquired in a connection with any acquisition or other investment permitted hereunderhereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, which assets within 90 days of the date of such acquisition, are (x) designated in writing to the Administrative Agent as being held for sale and not used or useful in for the ordinary course or the principal business continued operation of the Borrower and or any of its Restricted Subsidiaries or (y) non-core assets or unnecessary to any of their respective businesses; provided that no Event of Default exists on the business or operations of date on which the Borrower and its Restricted Subsidiaries or (ii) made in connection with definitive agreement governing the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assetsassets (including Related Business Assets); provided that, that upon the consummation of any such exchange or swap of any Real Estate Asset by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved]Dispositions of assets that do not constitute Collateral for fair market value; provided that the Net Proceeds of any such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative TransactionsTransactions and any related Disposition;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 12,500,000 and 0.3612.50% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to the next succeeding Fiscal Years;Year; and
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower any account receivable in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection accordance with any Qualified Securitization Financingfactoring or similar program. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold Disposed of free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate reasonably requested by the Borrower in order to effect the foregoing in accordance with Article 8 hereof.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Shift4 Payments, Inc.)
Fundamental Changes; Disposition of Assets. The No Borrower shall notshall, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition Disposition, in a single transaction or in a series of any assetsrelated transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the any Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the a Borrower, (1) the such Borrower shall be the continuing or surviving Person or and (2ii) if in the Person formed by or surviving case of any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the guarantee obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the any Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as reasonably determined by such Person) with at least 75% of the consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof); provided, further, that any such Disposition by any Loan Party (whether as a result single transaction or any series of transactions) to any Non-Qualified Loan Party of any intellectual property that, individually or in the aggregate, is material to the business of the Borrowers and their Restricted Subsidiaries, taken as a Divisionwhole, shall be treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clauses (b)(ii) or (j) thereof);
(c) (i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower Representative determines in good faith that such liquidation or dissolution is in the best interests of the BorrowerBorrowers, is not materially disadvantageous to the Lenders and the any Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.066.06 (other than in reliance on clause (j) thereof); and (iii) the conversion of the Borrower or any Restricted Subsidiary (other than a Borrower) may be converted into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the BorrowerBorrower Representative, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the such Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Liens, Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and Sale and Lease- Back Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, 10,000,000 at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 any Borrower or any Restricted Subsidiary) of the any Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets and for which the any 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 assets acquired in connection with such Disposition, (y) any Securities received by the any 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 10,000,000 and 0.752.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists shall exist and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereofthereof and any factoring or similar arrangement) or in connection with the collection or compromise thereofthereof (other than in connection with a Permitted Securitization Financing);
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), which (i) the Disposition or termination of which will do not materially interfere with the business of the Borrower Borrowers and its their Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in connection with the ordinary course of business (as determined in good faith by the Borrower)Transactions;
(q) Disposition Dispositions of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary acquired in connection with any acquisition permitted hereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, within 90 days of the date of such acquisition, are designated in writing to the business or operations Administrative Agent as being held for sale and not for the continued operation of the Borrower and its Borrowers or any of their Restricted Subsidiaries or any of their respective businesses; provided that (i) the Net Proceeds received in connection with any such Disposition shall be applied and/or reinvested as (and to the extent required) by Section 2.11(b)(ii) and (ii) made in connection with no Event of Default exists on the approval of any applicable antitrust authority or otherwise necessary or advisable in date on which the good faith determination of definitive agreement governing the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange or swap is made for fair value (as reasonably determined by the BorrowerBorrower Representative) for like property or assets; provided that, that (i) upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets property received do does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swappedswapped and (ii) any Net Proceeds received as “cash boot” in connection with any such transaction shall be applied and/or reinvested as (and to the extent required) by Section 2.11(b)(ii);
(s) [reserved]the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings;
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the any Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the BorrowerBorrower Representative, are not material to the conduct of the business of the Borrower Borrowers or its their Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, any Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority agency of the U.S. Federal government, any state, authority or other regulatory body or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdictionU.S.;
(z) Dispositions to effectuate the Transactions in accordance with the Steps Plan;
(aa) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith[Reserved]; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingDispositions contemplated on the Closing Date and described on Schedule 6.07. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof8.
Appears in 1 contract
Samples: Credit Agreement (Indivior PLC)
Fundamental Changes; Disposition of Assets. The Borrower Borrowers shall not, nor shall it the Borrowers permit any of its their Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, amalgamation or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value in excess of $2,500,000, in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the a Borrower or any other another Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the a Borrower, (1A) the a Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the a Borrower (any such Person, the “Successor Borrower”), (w) the Successor Borrower shall provide the documentation and other information reasonably requested in writing by the Lenders that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, and including, with respect to any Successor Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower, in each case at least three Business Days prior to the effectiveness of such merger, consolidation or amalgamation (or such shorter period as Agent shall otherwise agree), (x)
(1) in the case of a US Borrower, the Successor Borrower shall be an entity organized or existing under the law laws of the U.S., any state thereof or the District of Columbia, and (2) in the case of a UK Borrower, the Successor Borrower shall be an entity organized or existing under the laws of England and Wales, (y) the Successor Borrower shall expressly assume the Obligations of the applicable Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (xw) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the such Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower any Guarantor or sale of assets by any Subsidiary Guarantor, either (1x) the Borrower or a Subsidiary such Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.066.6;
(b) Dispositions (including of Capital Stock) among the Borrower Borrowers and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by any Loan Party to a Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.6 (other than in reliance on clause (i) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower Holdings reasonably determines in good faith that such liquidation or liquidation, dissolution is in the best interests of the BorrowerHoldings, is not materially disadvantageous to the Lenders and the Borrower Holdings or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 6.6 (other than in reliance on clause (ji) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 6.7 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.066.6 (other than in reliance on clause (i) thereof); and (iii) the conversion of the a Borrower or any Restricted Subsidiary into another form of entity, entity so long as such conversion does not adversely affect the value of the Loan Guaranty (as defined in the US Guaranty and Security Agreement) or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions in the ordinary course of business of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the BorrowerHoldings, is (Ai) no longer used or useful in its business (or in the business of any Restricted Subsidiary of the BorrowerSubsidiary) or (Bii) otherwise economically impracticable to maintain;
(f) Dispositions of Cash cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 6.6 (other than Section 6.06(j)6.6(i), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a6.4(a) (other than Section 6.04(a)(ix6.4(a)(vii));
(h) Dispositions (other than sales or other Dispositions of Accounts in connection with securitization or factoring arrangements) for fair market valuevalue (as determined in good faith by the Borrowers); provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 10,000,000 and 0.3512.5% of Consolidated Total Assets as of the last day of EBITDA for the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 75% of the consideration for such Disposition shall consist of Cash cash or Cash Equivalents (provided that for purposes of the 75% Cash cash consideration requirement, (wx) 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 Holdings or any Restricted Subsidiary) of the Borrower or Holdings and any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets and for which the Borrower Holdings 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 assets acquired in connection with such Disposition, (y) any Securities securities received by the Borrower Holdings or any Restricted Subsidiary from such transferee that are converted by such Person into Cash cash or Cash Equivalents (to the extent of the Cash cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, outstanding not in excess of the greater of $105,000,000 20,000,000 and 0.7525.0% of Consolidated Total Assets as of the last day of EBITDA for the most recently ended Test Period, in each case, Period shall be deemed to be Cashcash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a)exists; provided, (f) or (g) exists and (y) the Net Proceeds further, that, solely with respect to Dispositions of any Rolling Stock Collateral, such Disposition is in the ordinary course of business and shall be applied and/or reinvested as (on commercially reasonable prices and to the extent) required by Section 2.11(b)(ii)terms in a bona fide arm’s-length transaction;
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures or any subsidiary that is not a Wholly-Owned Subsidiary to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof (including any discounting or forgiveness thereof) in the ordinary course of business;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will do not materially interfere with the business of the Borrower Borrowers and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product lineSubsidiaries;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business);
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed[reserved];
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code IRC (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets Property so exchanged or swapped;
(sq) [reserved]other Dispositions; provided that the aggregate for fair market value (as determined in good faith by Holdings) of all assets subject to such Dispositions since the Closing Date shall not exceed $10,000,000;
(r) (i) licensing, sublicensing and crossnon-exclusive licensing arrangements involving any IP Rights of the Borrower Borrowers or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, in the ordinary course of business, which, in the reasonable business judgment good faith determination of the relevant Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer used, useful or economical to maintain in light of its use;
(us) terminations or unwinds of Derivative Transactions;
(vt) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(yu) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(zv) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter[reserved];
(aaw) Dispositions involving assets having a fair market value of letters of credit and/or bank guarantees (as reasonably determined by and/or the Borrower at rights thereunder) to banks or other financial institutions in the time ordinary course of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis business in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;exchange for cash and/or Cash Equivalents; and
(bbx) Sale and Lease-Back Transactions with respect to Real Property so long as (i) the Borrower Payment Conditions are satisfied, (ii) no Event of Default shall have occurred and be continuing or would be result from such Sale and Lease-Back Transactions, (iii) such Disposition is made for fair market value, and (iv) in compliance with Section 6.13(a) the case of any Sale and Lease-Back Transaction permitted hereunder, such Loan Party or Restricted Subsidiary shall use commercially reasonable efforts to cause, if requested by the Agent, each purchaser or transferee to enter into a Collateral Access Agreement on terms and conditions reasonably satisfactory to the Agent (it being understood that the Agent may establish Reserves in its Permitted Discretion for any such property or locations for which a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization SubsidiaryCollateral Access Agreement is not obtained); provided, that if, as of any date of determination, sales or Dispositions by the Loan Parties of Collateral and/or UK Collateral during the period of time from the first day of the month in which such Disposition shall be for no less than date of determination occurs until such date of determination, either individually or in the aggregate, involve $5,000,000 or more of assets included in the Borrowing Base (based on the fair market value of the assets so Disposed, determined in good faith by the Administrative Borrower) (the “Disposition Threshold Amount”), then Borrowers shall have, prior to consummation of the sale or Disposition that causes the assets included in the Borrowing Base that are sold or Disposed of during such property at period to exceed the time Disposition Threshold Amount, delivered to Agent an updated Borrowing Base Certificate that reflects the removal of the applicable assets from the Borrowing Base; and provided further that the Net Proceeds of such Disposition as determined sales or Dispositions by the Borrower in good faith; and
(ccLoan Parties of Collateral and/or UK Collateral, as applicable, shall be applied pursuant to Section 2.4(e)(ii) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financinghereof. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 6.7 to any Person other than a Loan Party, such Collateral shall automatically be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent and/or UK Security Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing foregoing. Notwithstanding anything herein to the contrary, no Borrower shall itself enter into any division or allocation of assets to a series of limited liability companies under any applicable law. Notwithstanding anything to the contrary set forth herein, in accordance the case of any Disposition of intellectual property material and necessary for the operation of the assets of the Loan Parties and their Subsidiaries which constitute Collateral, such intellectual property shall be subject to a non-exclusive royalty-free worldwide license in favor of the Agent solely for the purpose of the Agent’s exercise of rights and remedies under this Agreement and the other Loan Documents in connection with Article 8 hereofthe Collateral; provided that no Loan Party involved in any of the above-referenced Dispositions shall become an Excluded Subsidiary (other than an Immaterial Subsidiary) as a result of such Disposition. Notwithstanding anything to the contrary set forth herein, no Loan Party shall, and no Loan Party shall suffer or permit any of its Subsidiaries to, directly or indirectly, sell, assign, lease, convey, or otherwise Dispose of (whether in one or a series of related transactions) any intellectual property which is material to the conduct of the business of the Loan Parties and their Subsidiaries and which would remain material to the conduct of the business of the Loan Parties and their Subsidiaries after giving effect to any such disposition (except, in each case, as permitted pursuant to clause (r) above) to any Person that is not a Loan Party.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and concurrently with the consummation of such merger, consolidation or amalgamation, 100% of the Capital Stock of the Successor Borrower shall be pledged to the Administrative Agent for the benefit of the Secured Parties and (z)
(1) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan DocumentsDocuments and (2) upon its reasonable request, the Administrative Agent shall have received customary legal opinions; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the guarantee obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for Fair Market Value with at least 75% of the consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (including ii) treated as a result of a Divisionan Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(ic) 4. the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary may be converted into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Liens, Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and Sale and Lease-back Transactions permitted by Section 6.08;
(h) Dispositions for fair market valueFair Market Value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 65,000,000 and 0.3540.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisAdjusted EBITDA, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided Equivalents; provided, that for purposes of the 75% Cash consideration requirement, (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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) and Section 6.08(B)(1)(z) that is at that time outstanding, not in excess of the greater of $105,000,000 50,000,000 and 0.7530.0% of Consolidated Total Assets as of the last day of the most recently ended Test PeriodAdjusted EBITDA, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists shall exist and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) and any factoring or similar arrangement or in connection with the collection or compromise thereofof any of the foregoing;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), which (i) the Disposition or termination of which will do not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(im) 4. any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)[reserved];
(q) Disposition Dispositions of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made acquired in connection with the approval any acquisition permitted hereunder and sales of any applicable antitrust authority or otherwise necessary or advisable Real Estate Assets acquired in the good faith determination of the Borrower to consummate any acquisition permitted hereunder; provided that (i) the Net Proceeds received in connection with any such Disposition shall be applied and/or reinvested as (and to the extent required) by Section 2.11(b)(ii) and (ii) no Event of Default exists on the date on which the definitive agreement governing the relevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like property or assets; provided that, that (i) upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets property received do does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swappedswapped and (ii) any Net Proceeds received as “cash boot” in connection with any such transaction shall be applied and/or reinvested as (and to the extent required) by Section 2.11(b)(ii);
(s) [reserved]Dispositions set forth on Schedule 6.07(s);
(it) licensing, sublicensing 4. licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority agency of the U.S. Federal government, any state, authority or other regulatory body or any applicable Requirement of Law;
(y) any merger, amalgamation, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;; and
(aa) Dispositions involving assets having a fair market value (as reasonably determined by Fair Market Value in the Borrower at aggregate since the time of the relevant Disposition) Closing Date of not more than the greater of $50,000,000 60,000,000 and 0.3635.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingAdjusted EBITDA. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof8.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value (as reasonably determined in good faith by the Borrower) in excess of $10,000,000 in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary Subsidiary, and the Borrower may be merged, consolidated or amalgamated with or into any other Person (ii) including any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(aSubsidiary); provided that (A) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1i) the Borrower shall be the continuing or surviving Person or (2ii) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (xw) the Successor Borrower shall be an entity organized or existing under the law laws of the U.S.US, any state thereof or the District of Columbia, (yx) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent, (y) the Administrative Agent shall have a security interest in the Collateral for the benefit of the Secured Parties pursuant to the Collateral Documents that is perfected to at least the same extent as in effect immediately prior to such merger, consolidation or amalgamation and all actions reasonably requested by the Administrative Agent to maintain such perfected status have been or will promptly be taken (subject to the terms of the applicable Loan Documents), and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (xw) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital StockStock issued by any Restricted Subsidiary) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the BorrowerBorrower or such Restricted Subsidiary, is not materially disadvantageous to the Lenders Lenders, and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause Section 6.07(a) or (b) or this clause (cSection 6.07(c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entityentity (and solely with respect to the Borrower, organized in the US, any state thereof or the District of Columbia), so long as such conversion does not adversely affect the value of the Guarantees under the Loan Guaranty or the Collateral, if anytaken as a whole;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of including on an intercompany basis among the Borrower and its Restricted Subsidiaries) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (Ai) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (Bii) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and Liens, (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) or (z) Sale and Lease-Back Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 43,000,000 and 0.3510.0% of Consolidated Total Assets as Adjusted EBITDA of the last day of Borrower for the most recently ended Test Period calculated on a Pro Forma BasisPeriod, either (A) at least 75% of the consideration for such Disposition all Dispositions consummated pursuant to this Section 6.07(h) since the Original Closing Date shall consist of Cash or Cash Equivalents or (B) at least 50% of the consideration for all Dispositions consummated pursuant to this Section 6.07(h) since the Original Closing Date shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% or 50% Cash consideration requirement, as applicable, (w) the greater of the principal amount and carrying value of any Indebtedness or other liabilities (other than Indebtedness as reflected on the most recent balance sheet of the Borrower (or other a Parent Company) provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that are subordinated would have been reflected on the balance sheet of the Borrower (or Parent Company) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the Obligations or that are owed to date of such balance sheet, as determined in good faith by the Borrower or any Restricted SubsidiaryBorrower) of the Borrower or any such Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in Subsidiary, other than liabilities that are by their terms subordinated to the notes thereto)) Obligations, that are assumed by the transferee of any such assets and for (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases the Borrower and/or its applicable or such Restricted Subsidiary have been validly released by all relevant creditors in writingfrom such liabilities, (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 Restricted Subsidiary from such the 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 in respect of such Disposition having an aggregate fair market valuevalue (as reasonably determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) and Section 6.08(b) that is at that time outstanding, not in excess of the greater of $105,000,000 86,000,000 and 0.7520.0% of Consolidated Total Assets as Adjusted EBITDA of the last day of Borrower for the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (yi) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii) and (ii) for purposes of calculating the amount of prepayments required under Section 2.11(b)(ii) with the Net Proceeds of Dispositions consummated pursuant to clause (B) of this Section 6.07(h), the Borrower shall not be entitled to deduct from the calculation of such Net Proceeds any amounts reinvested in the business of the Borrower or any of its subsidiaries);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or (i) accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereofthereof and sales to factors or similar third parties) or in connection with the collection or compromise thereofthereof and (ii) receivables and related assets pursuant to any Permitted Receivables Financing;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product or business line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closedclosed (or otherwise in connection with the closing or sale of any facility);
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)[reserved];
(q) Disposition Dispositions of any non-core assets (i) and sales of Real Estate Assets acquired in a any acquisition or other investment permitted hereunder, hereunder which assets are (x) the Borrower determines in good faith will not be used or useful in for the ordinary course or the principal business continued operation of the Borrower and or any of its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations any of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereundertheir respective businesses;
(r) exchanges or swaps, including including, without limitation, transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded AssetAssets, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved]Dispositions of assets that do not constitute Collateral for fair market value;
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or other IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances issuance or registrationsregistration, or applications for issuances issuance or registrationsregistration, of IP Rights, which, in the reasonable business judgment good faith determination of the Borrower, are not material to the conduct of the business of the Borrower or and its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business of the Borrower and/or its subsidiaries in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of LawLaw (including, without limitation, the Dispositions of any assets (including Capital Stock) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition);
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. US, any state thereof or the District of Columbia and/or (ii) any Foreign Subsidiary in the U.S. US or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) other Dispositions involving assets having a fair market value (as reasonably determined in good faith by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 64,500,000 and 0.3615.0% of Consolidated Total Assets as Adjusted EBITDA of the last day of Borrower for the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;Period; and
(bb) so long as Dispositions contemplated on the Borrower would be in compliance with Section 6.13(a) Eighth Amendment Closing Date and described on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingSchedule 6.07 hereto. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate reasonably requested by the Borrower (including, without limitation, any full or partial release or subordination of any Lien granted pursuant to the terms of this Agreement) in order to effect the foregoing in accordance with Article 8 VIII hereof. Notwithstanding anything to the contrary contained in this Agreement, the Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, make any Disposition of, or any Investment in the form of, any assets (including intellectual property or IP Rights) to any Unrestricted Subsidiary, unless such Disposition or Investment is on an arm’s length basis and for fair market value, as determined in good faith by the Board of Directors or a Responsible Officer of the Borrower.
Appears in 1 contract
Samples: First Lien Credit Agreement (Waystar Holding Corp.)
Fundamental Changes; Disposition of Assets. The Lead Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition having a fair market value in excess of any assets$20,000,000, in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Lead Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the US Borrower, (1A) the US Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the US Borrower (any such Person, the “US Successor Borrower”), (x) the US Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the US Successor Borrower shall expressly assume the Obligations of the US Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each applicable Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the US Successor Borrower will succeed to, and be substituted for, the US Borrower under this Agreement and the other Loan Documents, (ii) in the case of any such merger, consolidation or amalgamation with or into a Canadian Borrower, (A) the applicable Canadian Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the applicable Canadian Borrower (any such Person, a “Canadian Successor Borrower”), (x) the Canadian Successor Borrower shall be an entity organized or existing under the laws of the Canada or any province or territory thereof, (y) the Canadian Successor Borrower shall expressly assume the Obligations of the applicable Canadian Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each applicable Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Canadian Successor Borrower will succeed to, and be substituted for, the applicable Canadian Borrower under this Agreement and the other Loan Documents, (iii) in the case of any such merger, consolidation or amalgamation with or into a European Borrower, (A) the applicable European Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the applicable European Borrower (any such Person, a “European Successor Borrower”), (x) the European Successor Borrower shall be an entity organized or existing under the laws of the Netherlands or England and Wales, as applicable, (y) |NY\7652510.20US-DOCS\114316435.10|| the European Successor Borrower shall expressly assume the Obligations of the European Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each applicable Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents (and such other additional Loan Documents as may be required to preserve the validity, ranking or perfection of European Collateral and evidence that no new burdening periods shall apply with respect to such European Collateral); it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the European Successor Borrower will succeed to, and be substituted for, the applicable European Borrower under this Agreement and the other Loan Documents, and (Biv) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Surviving Person shall expressly assume the guarantee obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Lead Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Lead Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Lead Borrower, is not materially disadvantageous to the Lenders and the Lead Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Lead Borrower or any Restricted Subsidiary may be converted into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Lead Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Lead Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or or other assets that were Cash Equivalents when the relevant original Investment was made;; |NY\7652510.20US-DOCS\114316435.10||
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Liens, Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and Sale and Lease-back Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 25,000,000 and 0.351.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, as applicable, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in the notes thereto)) that are assumed by the transferee of any such assets and for which the Lead 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) and Section 6.08 that is at that time outstanding, not in excess of the greater of $105,000,000 50,000,000 and 0.751.5% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists shall exist and (y) the Net Proceeds of such Disposition an updated Borrowing Base Certificate shall be applied and/or reinvested as (and delivered to the extent) Administrative Agent as required by Section 2.11(b)(ii5.01(e);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereofthereof and any factoring or similar arrangement) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), which (i) the Disposition or termination of which will do not materially interfere with the business of the Lead Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;; |NY\7652510.20US-DOCS\114316435.10||
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in connection with the ordinary course of business (as determined in good faith by the Borrower)Transactions;
(q) Disposition Dispositions of any non-core assets (i) acquired in a connection with any acquisition or other investment permitted hereunderhereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, which assets are (x) not used or useful in the ordinary course or the principal business within 90 days of the date of such acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of the Lead Borrower and or any of its Restricted Subsidiaries or (y) non-core assets or unnecessary to any of their respective businesses; provided that no Event of Default exists on the business or operations of date on which the Borrower and its Restricted Subsidiaries or (ii) made in connection with definitive agreement governing the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like property or assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets property received do does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reservedReserved];
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Lead Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the Lead Borrower, are not material to the conduct of the business of the Lead Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Lead Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority agency of the U.S. Federal government, any state, authority or other regulatory body or any applicable Requirement Requirements of Law;
(y) any merger, amalgamation, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or or (ii) any Foreign Subsidiary Canadian Loan Party or European Loan Party in the U.S. U.S.; |NY\7652510.20US-DOCS\114316435.10||
(z) Dispositions or conveyances that arise out of or relate to any other jurisdiction(i) Specified Lease Transaction or (ii) NMTC Transaction;
(zaa) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;; and
(aabb) other Dispositions involving assets having a fair market value (as reasonably determined by the Lead Borrower at the time of the relevant Disposition) in the aggregate since the Closing Date of not more than the greater of $50,000,000 40,000,000 and 0.361.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingPeriod. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof8.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower Loan Parties shall not, nor shall it permit any of its their Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise consummate a Division/Series Transaction, or make any Disposition of any assetsassets having a fair market value in excess of $2,500,000 in a single transaction or a series of related transactions and in excess of $5,000,000 in the aggregate for all such transactions, except:except (provided that none of the following shall be deemed to permit a Division/Series Transaction):
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the any Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the a Borrower, (1A) the such Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the a Borrower (any such Person, the “Successor Borrower”), (w) the Successor Borrower shall deliver to the Administrative Agent all documentation and other information reasonably requested with respect to the Successor Borrower by any Lender, which documentation or other information is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the PCMLTF Act and to the extent the Successor Borrower constitutes a “legal entity customer” under the Beneficial Ownership Regulation, a completed Beneficial Ownership Certification in relation to the Successor Borrower, (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of ColumbiaColumbia in the case of a U.S. Borrower and the law of Canada or any province thereof in the case of the Canadian Borrower, (y) the Successor Borrower shall expressly assume the Obligations of the such Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; , it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the such Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1A) the a Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or such Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2B) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the any Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower Representative determines in good faith that such liquidation or dissolution is in the best interests of the BorrowerBorrowers, is not materially disadvantageous to the Lenders Lenders, and the Borrower Borrowers or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); , (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; 6.06 and (iii) the conversion of the any Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property equipment or assets, inventory, equipment and other immaterial assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the BorrowerBorrower Representative, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the any Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to by Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and Liens, (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and (z) Sale-Leaseback Transactions permitted by Section 6.08;
(h) Dispositions for fair market valuevalue so long as no Event of Default has occurred and is continuing; provided that with respect to any such Disposition involving assets (other than any Permitted Asset Swap; provided that the fair market value of the asset subject to any such Permitted Asset Swap shall not exceed the greater of $6,500,000 and 5% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period) with a purchase price in excess of the greater of $45,000,000 6,500,000 and 0.355% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (wi) 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 Borrowers or any Restricted Subsidiary) of the Borrower Borrowers or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets and for which the Borrower Borrowers and/or its their applicable Restricted Subsidiary have been validly released by all relevant creditors in writing, (xii) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (yiii) any Securities Security received by the any Borrower or any Restricted Subsidiary from such transferee that are is 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 (ziv) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 6,500,000 and 0.755% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower Borrowers and its their Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions to the extent otherwise restricted by this Section 6.07, the consummation of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)Closing Date Transactions;
(q) Disposition Dispositions of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary acquired in connection with any acquisition permitted hereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, within 90 days of the date of such acquisition, are designated in writing to the business or operations Administrative Agent as being held for sale and not for the continued operation of the Borrower and its Borrowers or any of their Restricted Subsidiaries or any of their respective businesses; provided that (i) no Event of Default exists on the date on which the definitive agreement governing the relevant Disposition is executed and (ii) made in connection to the extent such non-core assets and Real Estate Assets were acquired with the approval proceeds of any applicable antitrust authority or otherwise necessary or advisable in Loans hereunder, the good faith determination Net Proceeds of such Dispositions shall be applied and/or reinvested as (and to the Borrower to consummate any acquisition permitted hereunderextent) required by Section 2.11(b)(ii);
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the BorrowerBorrower Representative) for like assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets assets so exchanged or swapped;
(s) [reserved]Dispositions of assets that do not constitute Collateral for fair market value;
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the any Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the BorrowerBorrower Representative, are not material to the conduct of the business of the Borrower Borrowers or its their Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, any Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, amalgamation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. or Canada and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower Representative at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis 5,000,000 in any Fiscal Year, which, if not used in such Fiscal Year, up to 50% of such unused amounts shall be carried forward to the next succeeding Fiscal Years;Year; and
(bb) so long as such transactions necessary to consummate the Permitted U.S. Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingReplacement. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold Disposed of free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate reasonably requested by the Borrower Representative in order to effect the foregoing in accordance with Article 8 hereof. Notwithstanding anything herein or any other Loan Document to the contrary, no Loan Party that is a limited liability company may divide itself into two or more limited liability companies (pursuant to a “plan of division” as contemplated under the Delaware Limited Liability Company Act or otherwise) without the prior written consent of the Administrative Agent, and in the event that any Loan Party that is a limited liability company divides itself into two or more limited liability companies (with or without the prior consent of the Administrative Agent as required above), any limited liability companies formed as a result of such division (including all series thereof) shall be required to comply with the obligations set forth in this Section 6.07 and Sections 5.12 and 5.13 and the other further assurances obligations set forth in the Loan Documents and become a Borrower or Subsidiary Guarantor (as required by Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (Nuvei Corp)
Fundamental Changes; Disposition of Assets. (a) The Borrower shall Loan Parties will not, nor shall it and will not permit any of its their Restricted Subsidiaries to, enter directly or indirectly, merge into or amalgamate or consolidate with any transaction of mergerother Person, consolidation or amalgamation, consummate a Division as the Dividing Personpermit any other Person to merge into or amalgamate or consolidate with them, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution)dissolve, or otherwise make any Disposition of any assetsexcept that, except:
(a) if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Restricted Subsidiary may be mergedmerge into or consolidate with Borrower in a transaction in which Borrower is the surviving corporation, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Subsidiary may merge or consolidate with or into any wholly owned Restricted Subsidiary; provided that, if either Subsidiary is a Guarantor, then the surviving entity must be a Guarantor, (iii) any Foreign Subsidiary may merge or consolidate with or into a Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)transaction in which the surviving entity is a Restricted Subsidiary; provided that (A) in if either Subsidiary is a Guarantor then the case of any such merger, consolidation or amalgamation with or into the Borrowersurviving entity must be a Guarantor, (1iv) the Borrower Permitted Acquisitions and other Permitted Investments shall be the continuing or surviving Person or (2) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documentspermitted, and (Bv) any Subsidiary of Borrower may liquidate, windup or dissolve, provided that such liquidation, winding up or dissolution could not reasonably be expected to have a Material Adverse Effect; provided that in connection with any merger, consolidation, liquidation, wind-up or dissolution involving a Loan Party, the appropriate Loan Parties shall take all actions necessary or reasonably requested by the Collateral Trustee to maintain the perfection of or perfect, as the case of any such merger or Divisionmay be, consolidation or amalgamation with or into protect and preserve the Borrower or any Subsidiary Guarantor, either (1) Liens on the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory Collateral granted to the Administrative Agent or (2) Collateral Trustee pursuant to the relevant transaction shall be treated as an Investment Security Documents and shall otherwise comply with Section 6.06;the provisions of Sections 5.10 and 5.11, in each case on the terms set forth therein and to the extent applicable.
(b) Dispositions Notwithstanding the foregoing, (including of Capital StockA) among the Borrower and/or any Restricted Subsidiary of Borrower may dispose of any or all of its assets (upon voluntary liquidation or otherwise) (including as a result of a Division);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; Guarantor (provided that in connection with the foregoing, the appropriate Loan Parties shall take all actions necessary or reasonably requested by the Collateral Trustee to maintain the perfection of or perfect, as the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets may be, protect and preserve the Liens on the Collateral granted to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment the Collateral Trustee pursuant to the Security Documents and shall otherwise comply with Section 6.06 (other than the provisions of Sections 5.10 and 5.11, in reliance each case on clause (j) thereof); (ii) any merger or Division, amalgamation, dissolution, liquidation or consolidation, the purpose of which is terms set forth therein and to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (athe extent applicable), clause (b) or this clause (c)) or and (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Foreign Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition may dispose of any assets (i) acquired in a acquisition or to any other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having that is a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Restricted Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (GXS Investments, Inc.)
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and concurrently with the consummation of such merger, consolidation or amalgamation, 100% of the Capital Stock of the Successor Borrower shall be pledged to the Administrative Agent for the benefit of the Secured Parties and (z)
(1) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan DocumentsDocuments and (2) upon its reasonable request, the Administrative Agent shall have received customary legal opinions; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the guarantee obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for Fair Market Value with at least 75% of the consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (including ii) treated as a result of a Divisionan Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary may be converted into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Liens, Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix6.04(a)(x))) and Sale and Lease-back Transactions permitted by Section 6.08;
(h) Dispositions for fair market valueFair Market Value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 78,000,000 and 0.3546.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisAdjusted EBITDA, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided Equivalents; provided, that for purposes of the 75% Cash consideration requirement, (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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) and Section 6.08(B)(1)(z) that is at that time outstanding, not in excess of the greater of $105,000,000 60,000,000 and 0.7536.0% of Consolidated Total Assets as of the last day of the most recently ended Test PeriodAdjusted EBITDA, in each case, shall be deemed to be Cash); provided, further, that (x) as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists shall exist and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by the First Lien Credit Agreement, the documentation governing any other First Lien Facility and/or Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) and any factoring or similar arrangement or in connection with the collection or compromise thereofof any of the foregoing;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), which (i) the Disposition or termination of which will do not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(m) (m) (i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in connection with the ordinary course of business (as determined in good faith by the Borrower)Transactions;
(q) Disposition Dispositions of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made acquired in connection with the approval any acquisition permitted hereunder and sales of any applicable antitrust authority or otherwise necessary or advisable Real Estate Assets acquired in the good faith determination of the Borrower to consummate any acquisition permitted hereunder; provided that (i) the Net Proceeds received in connection with any such Disposition shall be applied and/or reinvested as (and to the extent) required by the First Lien Credit Agreement, the documentation governing any other First Lien Facility and/or Section 2.11(b)(ii) and (ii) no Event of Default exists on the date on which the definitive agreement governing the relevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like property or assets; provided that, that (i) upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets property received do does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swappedswapped and (ii) any Net Proceeds received as “cash boot” in connection with any such transaction shall be applied and/or reinvested as (and to the extent) required by the First Lien Credit Agreement, the documentation governing any other First Lien Facility and/or Section 2.11(b)(ii);
(s) [reserved]Dispositions set forth on Schedule 6.07(s);
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority agency of the U.S. Federal government, any state, authority or other regulatory body or any applicable Requirement of Law;
(y) any merger, amalgamation, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;; and
(aa) Dispositions involving assets having a fair market value (as reasonably determined by Fair Market Value in the Borrower at aggregate since the time of the relevant Disposition) Closing Date of not more than the greater of $50,000,000 72,000,000 and 0.3642.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingAdjusted EBITDA. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof8.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Hayward Holdings, Inc.)
Fundamental Changes; Disposition of Assets. The Borrower Borrowers shall not, nor shall it they permit any of its their respective Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value (as reasonably determined in good faith by the Parent Borrower) in excess of $3,500,000 in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and Subsidiary;
(iii) any Borrower may be merged, consolidated or amalgamated with or into any other Person (including any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(aSubsidiary); provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1) the Borrower shall be the continuing or surviving Person or (2ii) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the such Borrower (any such Person, the “Successor Borrower”), (xw) the Successor Borrower shall be an entity organized or existing under the law laws of the U.S.US, any state thereof or the District of Columbia, (yx) the Successor Borrower shall expressly assume the Obligations of the such Borrower in a manner reasonably satisfactory to the Administrative Agent, (y) the Administrative Agent shall have a security interest in the Collateral for the benefit of the Secured Parties pursuant to the Collateral Documents that is perfected to at least the same extent as in effect immediately prior to such merger, consolidation or amalgamation and all actions reasonably requested by the Administrative Agent to maintain such perfected status have been or will promptly be taken (subject to the terms of the applicable Loan Documents), and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (xw) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the such Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the any Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division);
(c) (i) the liquidation or dissolution of any Restricted Subsidiary if the Parent Borrower determines in good faith that such liquidation or dissolution is in the best interests of the BorrowerBorrowers or such Restricted Subsidiary, is not materially disadvantageous to the Lenders Lenders, and the Borrower Borrowers or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (Ai) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause Section 6.07(a) or (b) or this clause (cSection 6.07(c)) or (Bii) any Investment permitted under Section 6.06; and (iii3) the conversion of the any Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or the Collateral, if anytaken as a whole;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Parent Borrower, is (Ai) no longer useful in its business (or in the business of any Restricted Subsidiary of the any Borrower) or (Bii) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and Liens, (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) or (z) Sale-Leaseback Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 6,500,0008,500,000 and 0.357.0% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (w) the greater of the principal amount and carrying value of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to as reflected on 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 of the Parent Borrower (or statement of financial position (a Parent Company) provided hereunder or in the notes footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of the Parent Borrower (or Parent Company) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Parent Borrower) of any Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets and for (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which the releases such Borrower and/or its applicable or such Restricted Subsidiary have been validly released by all relevant creditors in writingfrom such liabilities, (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 any Borrower or any Restricted Subsidiary from such the 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 in respect of such Disposition having an aggregate fair market valuevalue (as reasonably determined in good faith by the Parent Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) and Section 6.08(b)(z) that is at that time outstanding, not in excess of the greater of $105,000,000 18,500,00024,000,000 and 0.7520.0% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or (i) accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereofthereof and sales to factors or similar third parties) or in connection with the collection or compromise thereofthereof and (ii) receivables and related assets pursuant to any Permitted Receivables Financing;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the any Borrower and any of its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product or business line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closedclosed (or otherwise in connection with the closing or sale of any facility);
(p) Dispositions to the extent otherwise restricted by this Section 6.07, the consummation of Real Estate Investments in the ordinary course of business Transactions (as determined in good faith by including the BorrowerTarget Merger);
(q) Disposition Dispositions of any non-core assets (i) and sales of Real Estate Assets acquired in a any acquisition or other investment permitted hereunder, hereunder which assets are (x) the Parent Borrower determines in good faith will not be used or useful in for the ordinary course continued operation of any Borrower or the principal business any of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations any of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereundertheir respective businesses;
(r) exchanges or swaps, including including, without limitation, transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Parent Borrower) for like assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded AssetAssets, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved]Dispositions of assets that do not constitute Collateral for fair market value;
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or other IP Rights of the any Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances issuance or registrationsregistration, or applications for issuances issuance or registrationsregistration, of IP Rights, which, in the reasonable business judgment good faith determination of the Parent Borrower, are not material to the conduct of the business of the any Borrower or and any of its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, any Borrower and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of LawLaw (including, without limitation, the Dispositions of any assets (including Capital Stock) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition);
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. US and/or (ii) any Foreign Subsidiary in the U.S. US or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) other Dispositions involving assets having a fair market value (as reasonably determined in good faith by the Parent Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 14,000,00018,000,000 and 0.3615.0% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;Period; and
(bb) so long as Dispositions contemplated on the Borrower would be in compliance with Section 6.13(a) Closing Date and described on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingSchedule 6.07 hereto. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate reasonably requested by the Parent Borrower (including, without limitation, any full or partial release or subordination of any Lien granted pursuant to the terms of this Agreement) in order to effect the foregoing in accordance with Article 8 hereof. Nowithstanding anything to the contrary set forth herein, in no event shall any Loan Party Dispose of any Material Intellectual Property to any subsidiary that is not a Loan Party.
Appears in 1 contract
Samples: Credit Agreement (Certara, Inc.)
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value (as reasonably determined in good faith by the Borrower) in excess of $10,000,000 in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary Subsidiary, and the Borrower may be merged, consolidated or amalgamated with or into any other Person (ii) including any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(aSubsidiary); provided that (A) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1i) the Borrower shall be the continuing or surviving Person or (2ii) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (xw) the Successor Borrower shall be an entity organized or existing under the law laws of the U.S.US, any state thereof or the District of Columbia, (yx) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent, (y) the Administrative Agent shall have a security interest in the Collateral for the benefit of the Secured Parties pursuant to the Collateral Documents that is perfected to at least the same extent as in effect immediately prior to such merger, consolidation or amalgamation and all actions reasonably requested by the Administrative Agent to maintain such perfected status have been or will promptly be taken (subject to the terms of the applicable Loan Documents), and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (xw) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (B) in the case of any such merger or Division, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital StockStock issued by any Restricted Subsidiary) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as a result of a Division);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the BorrowerBorrower or such Restricted Subsidiary, is not materially disadvantageous to the Lenders Lenders, and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause Section 6.07(a) or (b) or this clause (cSection 6.07(c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entityentity (and solely with respect to the Borrower, organized in the US, any state thereof or the District of Columbia), so long as such conversion does not adversely affect the value of the Guarantees under the Loan Guaranty or the Collateral, if anytaken as a whole;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of including on an intercompany basis among the Borrower and its Restricted Subsidiaries) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (Ai) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (Bii) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and Liens, (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) or (z) Sale and Lease-Back Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 15,000,000 and 0.3510.0% of Consolidated Total Assets as Adjusted EBITDA of the last day of Borrower for the most recently ended Test Period calculated on a Pro Forma BasisPeriod, either (A) at least 75% of the consideration for such Disposition all Dispositions consummated pursuant to this Section 6.07(h) since the Closing Date shall consist of Cash or Cash Equivalents or (B) at least 50% of the consideration for all Dispositions consummated pursuant to this Section 6.07(h) since the Closing Date shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% or 50% Cash consideration requirement, as applicable, (w) the greater of the principal amount and carrying value of any Indebtedness or other liabilities (other than Indebtedness as reflected on the most recent balance sheet of the Borrower (or other a Parent Company) provided hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that are subordinated would have been reflected on the balance sheet of the Borrower (or Parent Company) or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the Obligations or that are owed to date of such balance sheet, as determined in good faith by the Borrower or any Restricted SubsidiaryBorrower) of the Borrower or any such Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in Subsidiary, other than liabilities that are by their terms subordinated to the notes thereto)) Obligations, that are assumed by the transferee of any such assets and for (or are otherwise extinguished in connection with the transactions relating to such Disposition) pursuant to a written agreement which releases the Borrower and/or its applicable or such Restricted Subsidiary have been validly released by all relevant creditors in writingfrom such liabilities, (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 Restricted Subsidiary from such the 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 in respect of such Disposition having an aggregate fair market valuevalue (as reasonably determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) and Section 6.08(b) that is at that time outstanding, not in excess of the greater of $105,000,000 30,000,000 and 0.7520.0% of Consolidated Total Assets as Adjusted EBITDA of the last day of Borrower for the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (yi) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii) and (ii) for purposes of calculating the amount of prepayments required under Section 2.11(b)(ii) with the Net Proceeds of Dispositions consummated pursuant to clause (B) of this Section 6.07(h), the Borrower shall not be entitled to deduct from the calculation of such Net Proceeds any amounts reinvested in the business of the Borrower or any of its subsidiaries);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or (i) accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereofthereof and sales to factors or similar third parties) or in connection with the collection or compromise thereofthereof and (ii) receivables and related assets pursuant to any Permitted Receivables Financing;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product or business line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closedclosed (or otherwise in connection with the closing or sale of any facility);
(p) Dispositions to the extent otherwise restricted by this Section 6.07, the consummation of Real Estate Investments in the ordinary course of business Transactions (as determined in good faith by including the BorrowerTarget Merger);
(q) Disposition Dispositions of any non-core assets (i) and sales of Real Estate Assets acquired in a any acquisition or other investment permitted hereunder, hereunder which assets are (x) the Borrower determines in good faith will not be used or useful in for the ordinary course or the principal business continued operation of the Borrower and or any of its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations any of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereundertheir respective businesses;
(r) exchanges or swaps, including including, without limitation, transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded AssetAssets, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved]Dispositions of assets that do not constitute Collateral for fair market value;
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or other IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances issuance or registrationsregistration, or applications for issuances issuance or registrationsregistration, of IP Rights, which, in the reasonable business judgment good faith determination of the Borrower, are not material to the conduct of the business of the Borrower or and its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.
Appears in 1 contract
Samples: First Amendment to the First Lien Credit Agreement (Waystar Holding Corp.)
Fundamental Changes; Disposition of Assets. The Borrower Parent shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition Disposition, in a single transaction or in a series of any assetsrelated transactions, except:
(a) (i1) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower Parent or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person ifSubsidiary; provided, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a); provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the a Borrower, (1A) the a Borrower shall be the continuing or surviving Person (and in the case of a U.S. Borrower, a U.S. Borrower shall be the continuing or surviving Person), or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the a Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or same country where the District of ColumbiaBorrower being succeeded was organized, (y) the Successor Borrower shall expressly assume the DB1/ 136236807.8 Obligations of the applicable Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the applicable Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary GuarantorObligor that is not a Borrower, either (1A) the Borrower or a Subsidiary Guarantor Obligor shall be the continuing or surviving Person or the continuing or surviving Person (or, in the case of an amalgamation, the Person formed as a result thereof) shall expressly assume the obligations of the Borrower or Subsidiary Guarantor such Obligor in a manner reasonably satisfactory to the Administrative Agent or (2B) the relevant transaction shall be treated as an Investment and shall comply with Section 6.0610.2.6;
(b2) Dispositions (including of Capital Stock) among the Borrower Parent and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by: (x) any Obligor to any Person that is not an Obligor, or (y) any U.S. Domiciled Obligor to any Canadian Domiciled Obligor, U.K./Xxxx Domiciled Obligor or German Domiciled Obligor, in each case, outside the ordinary course of business for working capital, administrative and/or other similar purposes shall be (i) for fair market value (as determined by the Borrower Agent in good faith) with at least 75% of the consideration for such Disposition consisting of Cash or Cash Equivalents (including deferred consideration payable in Cash or Cash Equivalents) at the time of such Disposition or (ii) treated as a result of a Divisionan Investment and otherwise made in compliance with Section 10.2.6 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower Agent determines in good faith that such liquidation or dissolution is in the best interests of the BorrowerBorrowers, is not materially disadvantageous to the Lenders (taken as a whole) and the Borrower Parent or any Restricted Subsidiary receives any the assets (if any) of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party Obligor that results in a distribution or other transfer of assets to any Restricted Subsidiary that is not a Loan Partyan Obligor, such distribution shall be treated as an Investment and shall comply with Section 6.06 10.2.6 (other than in reliance on clause (j) thereofSection 10.2.6(j)); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 10.2.7 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.0610.2.6; and (iii) the conversion of the Borrower Parent or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property equipment or assets, inventory, equipment and other immaterial (in the good faith determination of the Borrower Agent) assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e5) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable good faith judgment of the BorrowerBorrower Agent, is (Ai) no longer useful in its business (or in the business of any Restricted Subsidiary of the BorrowerParent) or (Bii) otherwise economically impracticable to maintain;
(f6) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g7) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (wi) Investments permitted pursuant to Section 6.06 10.2.6 (other than Section 6.06(j10.2.6(j)), (xii) Permitted Liens and Liens, (yiii) Restricted Payments permitted by Section 6.04(a10.2.4(a) (other than Section 6.04(a)(ix10.2.4(a)(ix))) and (iv) Sale and Lease-Back Transactions permitted by Section 10.2.8;
(h) 8) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 55,000,000 and 0.3510% of Consolidated Total Assets Adjusted EBITDA of the Parent and its Restricted Subsidiaries as of the last day of the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (including deferred consideration payable in Cash or Cash Equivalents) (provided that for purposes of the 75% Cash consideration requirement, (wi) 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 Parent or any Restricted Subsidiary) of the Borrower Parent or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets and for which the Borrower Parent and/or its applicable Restricted Subsidiary have been validly released by all relevant creditors in writing, (xii) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (yiii) any Securities Security received by the Borrower Parent or any Restricted Subsidiary from such transferee that are is 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 (ziv) any Designated Non-Cash Consideration received in respect of DB1/ 136236807.8 such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (ziv) and Section 10.2.8(b)(i)(z) that is at that time outstanding, not in excess of the greater of $105,000,000 115,000,000 and 0.7525% of Consolidated Total Assets Adjusted EBITDA of the Parent and its Restricted Subsidiaries as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii)exists;
(i9) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar or replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such similar or replacement property;
(j10) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k11) Dispositions Dispositions, discounting or forgiveness of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness to insurers which have provided insurance as to the collection thereof) or in connection with the collection or compromise thereofthereof (includes sales to factors);
(l12) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower Parent and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(13) (i) any termination of any lease in the ordinary course of business, (ii) any replacement of the Master Facility Lease with one or more leases between the Parent and/or its applicable subsidiary, on the one hand, and 30 West Pershing LLC or its applicable Affiliate, on the other hand, (iii) any expiration of any option agreement in respect of real or personal property and (iiiiv) any Disposition, termination, surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n14) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o15) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p16) Dispositions constituting any part of any Permitted Reorganization;
(17) Dispositions of non-core assets acquired in connection with any acquisition permitted hereunder and sales of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a any acquisition or other investment permitted hereunderhereunder which, which assets are (x) not used or useful in the ordinary course or the principal business within 90 days of the Borrower date of such acquisition, are designated in writing to the Agent as being held for sale and not for the continued operation of the Parent or any of its Restricted Subsidiaries or (y) non-core assets or unnecessary to any of their respective businesses; provided that no Event of Default exists on the business or operations of date on which the Borrower and its Restricted Subsidiaries or (ii) made in connection with definitive agreement governing the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r18) exchanges or swaps, including transactions covered by qualifying for tax free treatment under Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by in the Borrowergood faith determination of the Borrower Agent) for like assets; provided that, that upon the consummation of any such exchange or swap by any Loan PartyObligor, to the extent the assets received do not constitute an Excluded AssetProperty, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets assets so exchanged or swapped;
(s19) [reserved];
(i) licensing, sublicensing non-exclusive licensing and cross-licensing arrangements involving any IP Rights technology, intellectual property or Intellectual Property of the Borrower Parent or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP RightsIntellectual Property, or issuances or registrations, or applications for issuances or registrations, of IP RightsIntellectual Property, which, in the reasonable business judgment good faith determination of the BorrowerBorrower Agent, are not material to the conduct of the business as presently conducted of the Borrower or Parent and its Restricted Subsidiaries, or are no longer economical to maintain in light of its usetaken as whole;
(u21) terminations or unwinds of Derivative Transactions;; DB1/ 136236807.8
(v22) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w23) [reserved]Dispositions of Real Estate and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of the Parent and/or any Restricted Subsidiary;
(x24) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y25) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z26) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;; and
(aa27) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower Agent in good faith at the time of the relevant Disposition) of not more than the greater of $50,000,000 55,000,000 and 0.3610% of Consolidated Total Assets Adjusted EBITDA of the Parent and its Restricted Subsidiaries as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to the immediately succeeding Fiscal Years;
Year (bb) any amount so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition carried forward shall be for no less than the fair market value of deemed to be used last in such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financingsucceeding Fiscal Year). To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 10.2.7 to any Person other than a Loan Partyan Obligor, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 Section 12 hereof.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it the Borrower permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, amalgamation or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value in excess of $2,500,000, in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other another Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (w) the Successor Borrower shall provide the documentation and other information reasonably requested in writing by the Lenders that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, in each case at least three Business Days prior to the effectiveness of such merger, consolidation or amalgamation (or such shorter period as the Administrative Agent shall otherwise agree), (x) the Successor Borrower shall be an entity organized or existing under the law laws of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (xw) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower any Subsidiary Guarantor or sale of assets by any Subsidiary Guarantor, either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by any Loan Party to a Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower reasonably determines in good faith that such liquidation or liquidation, dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.066.06 (other than in reliance on clause (ii) thereof); and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, entity so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions in the ordinary course of business of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (Ai) no longer useful in its business (or in the business of any Restricted Subsidiary of the BorrowerSubsidiary) or (Bii) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)6.06(i), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix6.04(a)(vii));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis10,000,000, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (wx) 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 and any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Non- Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, 20,000,000 shall be deemed to be Cash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii2.08(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures or any subsidiary that is not a Wholly-Owned Subsidiary to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or discounting or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will do not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product lineSubsidiaries;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipmentnon-core assets acquired in connection with any acquisition permitted hereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, inventory or other assets (including leasehold interests within 90 days of the date of such acquisition, are designated in real property) with respect writing to facilities that are temporarily not in use, the Administrative Agent as being held for sale and not for the continued operation of the Borrower or closedany of its Restricted Subsidiaries or any of their respective businesses; provided that (i) the Net Proceeds received in connection with any such Disposition shall be applied and/or reinvested as (and to the extent required) by Section 2.08(b)(ii), (ii) no Event of Default exists on the date on which the definitive agreement governing the relevant Disposition is executed and (iii) the amount of all Dispositions made in reliance of this Section 6.07(o) shall not exceed $15,000,000;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(sq) [reserved]other Dispositions for fair market value in an aggregate amount since the Closing Date of not more than $30,000,000;
(r) (i) licensing, sublicensing and crossnon-exclusive licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business consistent with past practice and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, in the ordinary course of business consistent with past practice, which, in the reasonable business judgment good faith determination of the Borrower, are not material to the conduct of the business of the Borrower or its any Restricted SubsidiariesSubsidiary, or are no longer economical to maintain in light of its use;
(us) terminations or unwinds of Derivative Transactions;
(vt) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(yu) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(zv) any sale of motor vehicles Dispositions contemplated on the Closing Date and information technology equipment purchased at the end of an operating lease and resold thereafterdescribed on Schedule 6.07(v);
(aaw) Dispositions involving assets having a fair market value of letters of credit and/or bank guarantees (as reasonably determined by and/or the Borrower at rights thereunder) to banks or other financial institutions in the time ordinary course of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis business in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;exchange for Cash and/or Cash Equivalents; and
(bbx) Sale and Lease-Back Transactions, so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the aggregate fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
assets sold subject to all Sale and Lease-Back Transactions under this clause (ccx) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financingshall not exceed $15,000,000. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall automatically be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereofforegoing.
Appears in 1 contract
Samples: Term Loan Agreement (Daseke, Inc.)
Fundamental Changes; Disposition of Assets. The Borrower Borrowers shall not, nor shall it permit any of its their Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition Disposition, in a single transaction or in a series of any assetsrelated transactions, except:
: (a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Lead Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Lead Borrower, (1A) the Lead Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Lead Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Lead Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower Xxxxxxxx will succeed to, and be substituted for, the Lead Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or involving any Subsidiary Guarantor, either (1x) the Borrower or a (i) such Subsidiary Guarantor shall be the continuing or surviving Person or (ii) the continuing or surviving Person shall (A) expressly assume the guarantee obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent and (B) be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
6.06 and (biii) Dispositions (including in the case of Capital Stock) among the Borrower and/or any such merger, consolidation or amalgamation by a Restricted Subsidiary (upon voluntary liquidation or otherwise) (including as that is not a result of a Division);Loan Party into -190- #96942867v160458181 #96942867v1
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith provided that such liquidation or dissolution is in the best interests of the Borrowerdissolution, as applicable, would not reasonably be expected to have a Material Adverse Effect and is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted SubsidiaryLenders; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the any Borrower or any Restricted Subsidiary may be converted into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
; (d) (x) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
(h) Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (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 in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing and cross-licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financing. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrower shall not, nor shall it the Borrower permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, amalgamation or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value in excess of $2,500,000, in a single transaction or in a series of related transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other another Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (w) the Successor Borrower shall provide the documentation and other information reasonably requested in writing by the Lenders that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, and including, with respect to any Successor Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower, in each case at least three Business Days prior to the effectiveness of such merger, consolidation or amalgamation (or such shorter period as the Administrative Agent shall otherwise agree), (x) the Successor Borrower shall be an entity organized or existing under the law laws of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (xw) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower any Subsidiary Guarantor or sale of assets by any Subsidiary Guarantor, either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by any Loan Party to a Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower reasonably determines in good faith that such liquidation or liquidation, dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.066.06 (other than in reliance on clause (ii) thereof); and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, entity so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (x) Dispositions of obsolete, damaged or worn out property or assets, inventory, equipment and other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions in the ordinary course of business of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (Ai) no longer used or useful in its business (or in the business of any Restricted Subsidiary of the BorrowerSubsidiary) or (Bii) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)6.06(i), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix6.04(a)(vii));
(h) Dispositions for fair market valuevalue (as determined in good faith by the Borrower); provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 10,000,000 and 0.3512.5% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period calculated on a Pro Forma BasisPeriod, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (wx) 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 and any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in 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 assets 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 in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, outstanding not in excess of the greater of $105,000,000 20,000,000 and 0.7525.0% of Consolidated Total Assets as of the last day of Adjusted EBITDA for the most recently ended Test Period, in each case, Period shall be deemed to be Cash); provided, further, that (x) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii2.08(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures or any subsidiary that is not a Wholly-Owned Subsidiary to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or discounting or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will do not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product lineSubsidiaries;
(i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business);
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed[reserved];
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower);
(q) Disposition of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
(sq) [reserved]other Dispositions; provided that the aggregate for fair market value (as determined in good faith by the Borrower) of all assets subject to such Dispositions since the Closing Date shall not exceed $10,000,000;
(i) licensing, sublicensing and crossnon-exclusive licensing arrangements involving any IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, in the ordinary course of business, which, in the reasonable business judgment good faith determination of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer used, useful or economical to maintain in light of its use;
(us) terminations or unwinds of Derivative Transactions;
(vt) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved];
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(yu) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(zv) any sale of motor vehicles Dispositions contemplated on the Closing Date and information technology equipment purchased at the end of an operating lease and resold thereafterdescribed on Schedule 6.07(v);
(aaw) Dispositions involving assets having a of letters of credit and/or bank guarantees (and/or the rights thereunder) to banks or other financial institutions in the ordinary course of business in exchange for Cash and/or Cash Equivalents; and
(x) Sale and Lease-Back Transactions so long as the aggregate fair market value (as reasonably determined in good faith by the Borrower at the time Borrower) of the relevant Dispositionassets sold subject to all Sale and Lease-Back Transactions under this clause (x) of shall not more than the greater of exceed $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary10,000,000; provided, that the Net Proceeds of such Disposition Sale and Lease-Back Transaction shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
applied pursuant to Section 2.08(b)(ii) (cc) it being understood that any Disposition of Securitization Assets (other than Net Proceeds so received shall not be permitted to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization Financingbe reinvested). To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall automatically be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereofforegoing. Notwithstanding anything herein to the contrary, the Borrower shall not itself enter into any division or allocation of assets to a series of limited liability companies under any applicable law.
Appears in 1 contract
Samples: Term Loan Agreement (Concrete Pumping Holdings, Inc.)
Fundamental Changes; Disposition of Assets. The Other than the Closing Date Merger and the other Transactions, the Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of any assetsassets having a fair market value in excess of $1,750,000 in a single transaction or a series of related transactions and in excess of $7,500,000 in the aggregate for all such transactions, except:
(a) (i) any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary and (ii) any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)Subsidiary; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrower, (1A) the Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; , it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1A) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower or such Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2B) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result reasonably determined by such Person) with at least 75% of a Divisionthe consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, is not materially disadvantageous to the Lenders Lenders, and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); , (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; 6.06 and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
(d) (xi) Dispositions of obsolete, damaged inventory or worn out property equipment or assets, inventory, equipment and other immaterial assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (yii) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to by Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and Liens, (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix))) and (z) Sale and Lease-Back Transactions permitted by Section 6.08;
(h) so long as no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists on the date on which the agreement governing the relevant Disposition is executed, Dispositions for fair market value; provided that with respect to any such Disposition involving assets with a purchase price in excess of the greater of $45,000,000 and 0.35% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis2,500,000, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (wi) 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 in 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, (xii) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (yiii) any Securities Security received by the Borrower or any Restricted Subsidiary from such transferee that are is 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 (ziv) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (ziv) and Section 6.08(B)(1) that is at that time outstanding, not in excess of the greater of $105,000,000 and 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period2,500,000, in each case, shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
(m) (i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions to the extent constituting a Disposition, the consummation of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)other Transactions;
(q) Disposition Dispositions of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets or unnecessary acquired in connection with any acquisition permitted hereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, within 90 days of the date of such acquisition, are designated in writing to the business or operations Administrative Agent as being held for sale and not for the continued operation of the Borrower and or any of its Restricted Subsidiaries or (ii) made in connection with any of their respective businesses; provided that no Event of Default exists on the approval of any applicable antitrust authority or otherwise necessary or advisable in date on which the good faith determination of definitive agreement governing the Borrower to consummate any acquisition permitted hereunderrelevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets assets so exchanged or swapped;
(s) [reserved]Dispositions of assets that do not constitute Collateral for fair market value; provided that the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) licensing, sublicensing licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrower or any Restricted Subsidiary (including pursuant to any franchise agreement) in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable business judgment good faith determination of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations or unwinds of Derivative Transactions;
(v) the granting of any franchise with respect to any facility, store, restaurant or other Unit Location (and any Dispositions of Capital Stock ofproperty in connection therewith) to any franchisee meeting the reasonable qualifications of the Borrower and/or its Subsidiaries; provided that (i) such Disposition is made for fair market value and (ii) such Disposition is on terms that are no less favorable to the Borrower or the applicable Subsidiary than might be obtained at the time in a comparable arm’s length transaction; provided, or sales further, that if the granting of Indebtedness a franchise relates to a facility, store, restaurant or other Securities ofUnit Location then owned by a Loan Party, Unrestricted Subsidiaries(A) no Event of Default shall exist on the date on which the agreement governing the relevant Disposition is executed, (B) the Total Leverage Ratio calculated on a Pro Forma Basis after giving effect thereto shall be less than or equal to 6.00:1.00 and (C) the number of Unit Locations then owned by the Loan Parties immediately after giving effect to such Disposition shall be greater than or equal to 75% of the number of facilities, stores, restaurants or other Unit Locations owned by the Loan Parties immediately prior to giving effect to such Disposition (or series of related Dispositions);
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Subsidiary;
(x) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;; and
(aa) Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis 7,500,000 in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to the next succeeding Fiscal Years;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) any Disposition of Securitization Assets (other than to a Securitization Subsidiary) or related assets in connection with any Qualified Securitization FinancingYear. To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof8.
Appears in 1 contract
Samples: Credit Agreement (First Watch Restaurant Group, Inc.)
Fundamental Changes; Disposition of Assets. The Borrower Company shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, consummate a Division as the Dividing Person, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or otherwise make any Disposition of assets having a fair market value in excess of $30,000,000, in a single transaction or in a series of related transactions, and in excess of $100,000,000 in the aggregate for all such transactions in any assetsFiscal Year, except:
(a) (i) any of the Restricted Subsidiary Subsidiaries or the Company may be merged, consolidated or amalgamated with or into the Borrower Company or any other Restricted Subsidiary Subsidiary, and (ii) the Company may be merged, consolidated or amalgamated with or into any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.07 (other than Section 6.07(a)New Parent; provided that (Ai) in the case of any such merger, consolidation or amalgamation with or into the Borrowerany Borrower or any merger, consolidation or amalgamation of a Borrower with or into another Person, (1A) the applicable Borrower shall be the continuing or surviving Person or (2B) if the Person formed by or surviving any such merger, consolidation or amalgamation (including any immediate and successive mergers, consolidations or amalgamations of entities) is not the such Borrower (any such PersonPerson after giving effect to such transaction or transactions, the “Successor Borrower”), (x1) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y2) the Successor Borrower shall expressly assume the Obligations of the applicable Borrower in a manner reasonably satisfactory to the Administrative Agent and shall have delivered to the Administrative Agent all documentation and other information reasonably requested in writing by the Administrative Agent which is required by U.S. regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations including the USA PATRIOT Act and (z3) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x1) through (z(3) are satisfied, the Successor Borrower will succeed to, and be substituted for, the applicable Borrower under this Agreement and the other Loan Documents, Documents and (Bii) in the case of any such merger or Divisionmerger, consolidation or amalgamation with or into the Borrower or any Subsidiary Guarantor, either (1x) the Borrower or a such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the guarantee obligations of the Borrower or Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (2y) the relevant transaction shall be treated as an Investment and shall comply otherwise be made in compliance with Section 6.06;
(b) Dispositions (including of Capital Stock) among the Borrower Company and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (including as a result of a Divisiondetermined by such Person in good faith) or (ii) treated as an Investment and otherwise be made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary if the Borrower Company determines in good faith that such liquidation or dissolution is in the best interests of the BorrowerCompany, is not materially disadvantageous to the Lenders Lenders, and the Borrower Company or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation or [[5470263]] dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply otherwise be made in compliance with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger or Divisionmerger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Borrower Company or any Restricted Subsidiary may be converted into another form of entity, in each case, so long as such conversion does not adversely affect the value of the Loan Guaranty or the Collateral, if anytaken as a whole;
(d) (x) Dispositions of obsolete, damaged inventory or worn out property or assets, inventorygoods held for sale, equipment and or other assets in the ordinary course of business (as determined in good faith by the management of the Borrower), and property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiariesincluding on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) Dispositions of surplus, obsolete, used or worn out property or other property (including, for the avoidance of doubt, the abandonment of any IP Rights) that, in the reasonable good faith judgment of the BorrowerCompany, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the BorrowerCompany) or (B) otherwise economically impracticable or not commercially reasonable to maintain;
(f) Dispositions of Cash and/or Cash Equivalents and/or or other assets that were Cash and/or Cash Equivalents when the relevant original Investment was made;
(g) Dispositions, mergers, Divisions, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j))) and Permitted Liens, (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix6.04(a)(viii));
(h) Dispositions for fair market value; provided that with respect to (1) any such single Disposition involving transaction with respect to assets with having a purchase price fair market value in excess of the greater of $45,000,000 70,000,000 and 0.3520% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated or (2) any other Disposition transactions with respect to assets having a fair market value in excess of the greater of $200,000,000 and 60% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, for all such transactions on a Pro Forma Basisan aggregate basis in any Fiscal Year (in each case other than any Permitted Asset Swap), at least 75% of the consideration for such Disposition (other than the portion of any such Disposition consisting of a Permitted Asset Swap), together with all other Dispositions undertaken pursuant to this clause (h) since the Closing Date (on a cumulative basis), shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (wv) 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 Company or any Restricted Subsidiary) of the Borrower Company or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto), or if the incurrence of such Indebtedness or other liability took place after the date of such balance sheet, that would have been shown on such balance sheet or in the notes thereto, as determined in good faith by the Company) that are (i) assumed by the transferee of any such assets and for which the Borrower Company and/or its applicable Restricted Subsidiary have been validly released by all relevant creditors in writingwriting or (ii) otherwise cancelled or terminated in connection with such Disposition, (xw) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (yx) any Securities or other obligations or assets received by the Borrower Company or any Restricted Subsidiary from such transferee (including earn-outs or similar obligations) that are converted by such Person into Cash or Cash Equivalents, or by their terms are required to be satisfied for 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 Disposition, (zy) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together [[5470263]] with all other Designated Non-Cash Consideration received pursuant to this clause (zy) that is at that time outstanding, not in excess of the greater of $105,000,000 85,000,000 and 0.7525% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test PeriodPeriod and (z) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 2.11(b)(ii), in each case, case shall be deemed to be Cash); provided, further, that (x) on the date on which the agreement governing such Disposition is executed, no Event of Default under Section 7.01(a), (f) or (g) exists and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the ii)the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of investments Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the relevant joint venture arrangements and and/or similar binding arrangements;
(k) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof, or as part of any bankruptcy or similar proceeding;
(l) Dispositions and/or terminations of of, or constituting, leases, subleases, licenses, sublicenses or cross-licenses or sublicenses (including the provision of software under any open source license), the Dispositions or terminations of which (i) the Disposition or termination of which will do not materially interfere with the business of the Borrower Company and its Restricted Subsidiaries or Subsidiaries, (ii) which relate to closed facilities or the discontinuation of any product lineline or (iii) are made in the ordinary course of business;
(m) (i) any termination of any lease lease, sublease, license or sub-license in the ordinary course of businessbusiness (and any related Disposition of improvements made to leased real property resulting therefrom), (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to foreclosure, expropriation, forced disposition, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Dispositions or consignments of equipment, inventory or other assets (including leasehold or licensed interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(p) Dispositions of Real Estate Investments in the ordinary course of business (as determined in good faith by the Borrower)[reserved];
(q) Disposition Dispositions of any assets (i) acquired in a acquisition or other investment permitted hereunder, which assets are (x) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or (y) non-core assets and sales of Real Estate Assets, in each case acquired in any acquisition or unnecessary other Investment permitted hereunder, (x) which Disposition or sale is required to the business or operations of the Borrower and its Restricted Subsidiaries or (ii) made in connection with obtain the approval of any applicable antitrust anti-trust authority or is otherwise necessary or advisable in the good faith determination of the Borrower Company to consummate any acquisition or other Investment permitted hereunderhereunder or (y) which, within 180 days of the date of such acquisition or Investment, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of the Company or any of its Restricted Subsidiaries or any of their respective businesses;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as any such exchange [[5470263]] or swap is made for fair value (as reasonably determined by the BorrowerCompany in good faith) for like assetsproperty or assets or property, assets or services of greater value or usefulness to the business of the Company and its Restricted Subsidiaries as a whole, as determined in good faith by the Company; provided that, that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets property received do does not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets property or assets so exchanged or swapped;
(s) [reserved];
(i) licensing, sublicensing licensing and cross-licensing (including sub-licensing) arrangements involving any technology, intellectual property or IP Rights of the Borrower Company or any Restricted Subsidiary in the ordinary course of business and business, (ii) Dispositions, abandonments, cancellations or lapses of any IP Rights, Rights or issuances or registrations, or applications for issuances or registrations, of IP RightsRights in the ordinary course of business, or which, in the reasonable business judgment good faith determination of the BorrowerCompany, are not material to the conduct of the business of the Borrower Company or its Restricted Subsidiaries, or are no longer economical to maintain in light of its useuse and (iii) Dispositions of any technology, intellectual property or IP Rights of the Company or any Restricted Subsidiary in the ordinary course of business;
(u) terminations or unwinds of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sales of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of the Company and/or any Restricted Subsidiary;
(x) Dispositions made to comply with any order or other directive of any Governmental Authority or any applicable Requirement of Law;
(y) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(z) [reserved];
(aa) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(aabb) other Dispositions involving assets having a fair market value (as reasonably determined by the Borrower at the time of the relevant Disposition) of not more than than, in any Fiscal Year, the greater of $50,000,000 85,000,000 and 0.3625% of Consolidated Total Assets Adjusted EBITDA as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal YearsPeriod;
(bb) so long as the Borrower would be in compliance with Section 6.13(a) on a Pro Forma Basis, any Disposition of Securitization Assets to a Securitization Subsidiary; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith; and
(cc) Dispositions contemplated on the Closing Date and, if involving assets having a fair market value in excess of $5,000,000, described on Schedule 6.07 hereto;
(dd) Dispositions or discounts of accounts receivable, or participations therein, or Receivables Facility Assets, or any Disposition disposition of Securitization Assets (the Capital Stock in a Subsidiary all or substantially all of the assets of which are Receivables Facility Assets, or other than rights to a Securitization Subsidiary) or payment and related assets in connection with any Qualified Securitization Financing. To Receivables Facility; [[5470263]]
(ee) any issuance, sale or Disposition of Capital Stock to directors, officers, managers or employees for purposes of satisfying requirements with respect to directors’ qualifying shares and shares issued to foreign nationals, in each case as required by applicable Requirements of Law;
(ff) any netting arrangement of accounts receivable between or among the extent that Company and its Restricted Subsidiaries or among Restricted Subsidiaries of the Company made in the ordinary course of business; (gg) any Collateral is Disposed “fee in lieu” or other Disposition of as expressly permitted by this Section 6.07 assets to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created Governmental Authority that continue in use by the Loan DocumentsCompany or any Restricted Subsidiary, which Liens shall be automatically released so long as the Company or any Restricted Subsidiary may obtain title to such asset upon the consummation of such Dispositionreasonable notice by paying a nominal fee; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof.and
Appears in 1 contract
