Fundamental Changes; Disposition of Assets. The Borrowers and the Subsidiary Guarantors shall not, nor shall they permit any of their Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, except: (a) any Subsidiary may be merged or consolidated or amalgamated with or into any Borrower or any other Subsidiary; provided that (i) in the case of such a merger, amalgamation or consolidation with or into any Borrower, such Borrower shall be the continuing or surviving Person (or, in the case of any such transaction involving both Borrowers, the Borrower Agent shall be the continuing or surviving Person) and (ii) in the case of such a merger, amalgamation or consolidation with or into any Subsidiary Guarantor, either (x) such Subsidiary Guarantor shall be the continuing or surviving Person or (y) such transaction shall be treated as an Investment and shall comply Section 6.07; (b) sales or other dispositions among the Borrowers and their Subsidiaries (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 (i) for fair market value (as reasonably determined by such Person) and at least 75.0% of the consideration for such sale or disposition consists of Cash or Cash Equivalents payable at the time of consummation of such sale or other disposition or (ii) treated as an Investment and shall be otherwise made in compliance with Section 6.07; (i) the liquidation or dissolution of any 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, dissolution or change in form is in the best interests of the Borrowers, is not materially disadvantageous to the Lenders and the Borrowers or any Subsidiary receives any assets of such dissolved or liquidated Subsidiary; provided that in the case of a dissolution or liquidation of a Loan Party that results in a distribution of assets to a Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.07 (other than Section 6.07(j)) and (ii) any merger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect a sale or disposition otherwise permitted under this Section 6.08 (other than clause (a), clause (b) or this clause (c)); provided, further, in the case of a change in the form of entity of any Subsidiary that is a Loan Party, the security interests in the Collateral shall remain in full force and effect and perfected to the same extent as prior to such change; (d) (x) sales or leases of inventory or equipment in the ordinary course of business (including on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business; (e) (x) disposals of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower Agent, is no longer useful in its business 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 Agent reasonably determines are surplus assets; (f) sales of Cash Equivalents for the fair market value thereof; (g) dispositions, mergers, amalgamations, consolidations or conveyances that constitute Investments permitted pursuant to Section 6.07 (other than Section 6.07(j)), Permitted Liens, Restricted Payments permitted by Section 6.05(a) (other than Section 6.05(a)(ix)) and Sale-Leaseback Transactions permitted by Section 6.10; (h) sales or other dispositions of any assets of the Borrowers or any Subsidiary for fair market value; provided that with respect to sales or dispositions (other than any Store Exchange) in an aggregate amount in excess of the greater of $25,000,000 and 0.75% of the Consolidated Total Assets as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 5.01, at least 75.0% of the consideration for such sale or disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75.0% 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 Agent or a Subsidiary) of any Borrower or any Subsidiary (as shown on such person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets and for which the Borrower Agent and its Subsidiaries shall have been validly released by all 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 sale or disposition, (y) any Securities received by such Subsidiary from such transferee that are converted by such Subsidiary into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable sale or disposition and (z) any Designated Non-Cash Consideration received in respect of such sale or 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 $40,000,000, in each case, shall be deemed to be Cash); provided, further, that (i) immediately prior to and after giving effect to such sale or disposition, no Event of Default shall have occurred that is continuing on the date on which the agreement governing such sale or disposition is executed and (ii) the Net Proceeds of such sale or disposition (including any “cash boot” arising in connection with a Store Exchange) shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b) (with any Net Proceeds of Term Loan First Lien Collateral to be held in a Term Proceeds Account (as defined in the Term Loan Agreement) pending application for such purpose if any Default then exists); (i) to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of 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, buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (k) sales, discounting or forgiveness of Accounts in the ordinary course of business or in connection with the collection or compromise thereof; (l) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and which (i) do not materially interfere with the business of the Borrowers and their Subsidiaries or (ii) relate to closed stores; (m) (i) termination of leases in the ordinary course of business, (ii) 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 in the ordinary course of business; (n) transfers of property subject to casualty, eminent domain or condemnation proceedings (including in lieu thereof); (o) licenses for the conduct of licensed departments within the Loan Parties’ stores in the ordinary course of business; (p) as long as (i) no Event of Default then exists or would arise therefrom and (ii) ABL Excess Availability on the date of the proposed transaction (calculated on a Pro Forma Basis) is equal to or greater than 10.0% of the ABL Line Cap, bulk sales or other dispositions of the Loan Parties’ Inventory outside of the ordinary course of business in connection with store closings that are conducted on an arm’s-length basis; provided that such store closures and related Inventory dispositions shall not exceed, in any Fiscal Year 20.0% of the number of the Loan Parties’ stores as of the beginning of such Fiscal Year (net of store relocations (x) occurring substantially contemporaneously with, but in no event later than ten Business Days after, the related store closure date and (y) wherein a binding lease has been entered into for a new store opening prior to the related store closure date); provided, further, that all sales of Inventory in connection with store closings in a transaction or series of related transactions shall be in accordance with liquidation agreements and with professional liquidators reasonably acceptable to the Administrative Agent and proceeds of such sales or other dispositions shall be paid to the Blocked Accounts as provided in Section 2.21; provided, further, that if the Net Proceeds of any sale or disposition of Inventory permitted pursuant to this clause (p) exceeds $20,000,000, the Borrower Agent shall be required to deliver an updated Borrowing Base Certificate to the Administrative Agent within five Business Days of such sale or disposition; (q) sales of non-core assets acquired in connection with a Permitted Acquisition and sales of Real Estate Assets acquired in a Permitted Acquisition which, within 30 days of the date of the acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of a store; provided that (i) all Net Proceeds received in connection therewith (except to the extent constituting Term Loan First Lien Collateral) shall be paid to the Blocked Accounts as provided in Section 2.21 and (ii) no Event of Default shall have occurred and be continuing; (r) exchanges or swaps, including, without limitation, transactions covered by Section 1031 of the Code, of Real Estate Assets so long as the exchange or swap is made for fair value and on an arm’s length basis for other Real Estate Assets; provided that upon the consummation of such exchange or swap, in the case of any Loan Party, the Administrative Agent has a perfected Lien having the same priority as any Lien held on the Real Estate Assets so exchanged or swapped; (s) sales and dispositions for fair market value in an aggregate amount since the Closing Date of up to the greater of $30,000,000 and 1.00% of the Consolidated Total Assets as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 5.01; (i) licensing and cross-licensing arrangements involving any technology or other intellectual property of any Borrower or any Subsidiary in the ordinary course of business and (ii) dispositions of property in the ordinary course of business consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination of the Borrower Agent, are not material to the conduct of the business of the Borrowers and the Subsidiaries; (u) terminations of Derivative Transactions; and (v) sales or dispositions of Capital Stock of Unrestricted Subsidiaries. To the extent any Collateral is disposed of as expressly permitted by this Section 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, and the Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.

Appears in 1 contract

Samples: Abl Credit Agreement (Party City Holdco Inc.)

Fundamental Changes; Disposition of Assets. The Borrowers and the Subsidiary Guarantors shall not, nor shall they permit any of their Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, except: (a) any Subsidiary may be merged or consolidated or amalgamated with or into ~~any~~ either Borrower or any other Subsidiary; provided that (i) in the case of such a merger, amalgamation or consolidation with or into ~~any~~ either Borrower, such Borrower shall be the continuing or surviving Person (or, in the case of any such transaction involving both Borrowers, the Borrower Agent shall be the continuing or surviving Person) and (ii) in the case of such a merger, amalgamation or consolidation with or into any Subsidiary Guarantor, either (x) such Subsidiary Guarantor shall be the continuing or surviving Person or (y) such transaction shall be treated as an Investment and shall comply Section 6.07; (b) sales or other dispositions among the Borrowers and their Subsidiaries (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 (i) for fair market value (as reasonably determined by such Person) and at least 75.0% of the consideration for such sale or disposition consists of Cash or Cash Equivalents payable at the time of consummation of such sale or other disposition or (ii) treated as an Investment and ~~shall be~~ otherwise made in compliance with Section 6.07; (i) the liquidation or dissolution of any 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, dissolution or change in form is in the best interests of the Borrowers, is not materially disadvantageous to the Lenders and the Borrowers or any Subsidiary receives any assets of such dissolved or liquidated Subsidiary; provided that in the case of a dissolution or liquidation of a Loan Party that results in a distribution of assets to a Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.07 (other than Section 6.07(j)) and (ii) any merger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect a sale or disposition otherwise permitted under this Section 6.08 (other than clause (a), clause (b) or this clause (c)); provided, further, in the case of a change in the form of entity of any Subsidiary that is a Loan Party, the security interests in the Collateral shall remain in full force and effect and perfected to the same extent as prior to such change; (d) (x) sales or leases of inventory or equipment in the ordinary course of business (including on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business; (e) (x) disposals of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower Agent, is no longer useful in its business 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 Agent reasonably determines are surplus assets; (f) sales of Cash Equivalents for the fair market value thereof; (g) dispositions, mergers, amalgamations, consolidations or conveyances that constitute Investments permitted pursuant to Section 6.07 (other than Section 6.07(j)), Permitted Liens, Restricted Payments permitted by Section 6.05(a) (other than Section 6.05(a)(ix)) and Sale-Leaseback Transactions permitted by Section 6.10; (h) sales or other dispositions of any assets of the Borrowers or any Subsidiary for fair market value; provided that with respect to sales or dispositions (other than any Store Exchange) in an aggregate amount in excess of the greater of $~~25,000,000~~ 15,000,000 and ~~0.75~~0.50% of the Consolidated Total Assets as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 5.01, at least 75.0% of the consideration for such sale or disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75.0% 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 Agent or a Subsidiary) of ~~any~~ either Borrower or any Subsidiary (as shown on such person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets and for which the Borrower Agent and its Subsidiaries shall have been validly released by all 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 sale or disposition, (y) any Securities received by such Subsidiary from such transferee that are converted by such Subsidiary into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable sale or disposition and (z) any Designated Non-Cash Consideration received in respect of such sale or 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 $~~40,000,000~~25,000,000, in each case, shall be deemed to be Cash); ~~provided, further,~~ provided further that (i) immediately prior to and after giving effect to such sale or disposition, no Event of Default shall have occurred that is continuing on the date on which the agreement governing such sale or disposition is executed and (ii) the Net Proceeds of such sale or disposition (including any “cash boot” arising in connection with a Store Exchange) shall be applied and/or reinvested as (and to the extent) required by Section ~~2.11(b~~2.11(b)(ii) (with any Net Proceeds of Term Loan First Lien Collateral to be held in a Term Loan Proceeds Account ~~(as defined in the Term Loan Agreement)~~ pending application for such purpose if any Default then exists); (i) to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of 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, buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (k) sales, discounting or forgiveness of Accounts in the ordinary course of business or in connection with the collection or compromise thereof; (l) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and which (i) do not materially interfere with the business of the Borrowers and their Subsidiaries or (ii) relate to closed stores; (m) (i) termination of leases in the ordinary course of business, (ii) 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 in the ordinary course of business; (n) transfers of property subject to casualty, eminent domain or condemnation proceedings (including in lieu thereof); (o) licenses for the conduct of licensed departments within the Loan Parties’ stores in the ordinary course of business; (p) as long as ~~(i)~~ no Event of Default then exists or would arise ~~therefrom and (ii) ABL Excess Availability on the date of the proposed transaction (calculated on a Pro Forma Basis) is equal to or greater than 10.0% of the ABL Line Cap~~therefrom, bulk sales or other dispositions of the Loan Parties’ Inventory outside of the ordinary course of business in connection with store closings that are conducted on an arm’s-length basis; provided that such store closures and related Inventory dispositions shall not exceed, in any Fiscal ~~Year~~ Year, 20.0% of the number of the Loan Parties’ stores as of the beginning of such Fiscal Year (net of store relocations (x) occurring substantially contemporaneously with, but in no event later than ten Business Days after, the related store closure date and (y) wherein a binding lease has been entered into for a new store opening prior to the related store closure date); provided, further, that all sales of Inventory in connection with store closings in a transaction or series of related transactions shall be in accordance with liquidation agreements and with professional liquidators reasonably acceptable to the Administrative Agent and proceeds of such sales or other dispositions shall be paid to the Blocked Accounts as provided in Section 2.21; provided, further, that if the Net Proceeds of any sale or disposition of Inventory permitted pursuant to this clause (p) exceeds $20,000,000, the Borrower Agent shall be required to deliver an updated Borrowing Base Certificate to the Administrative Agent within five Business Days of such sale or disposition; (q) sales of non-core assets acquired in connection with a Permitted Acquisition and sales of Real Estate Assets acquired in a Permitted Acquisition which, within 30 days of the date of the acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of a store; provided that (i) ~~all~~ the Net Proceeds received in connection ~~therewith~~ with any such sales (except to the extent constituting Revolving Facility First Lien Collateral required to be applied to repay outstandings under the ABL Facility) shall be applied and/or reinvested as (and to the extent required) by Section 2.11(b)(ii) (with any Net Proceeds of Term Loan First Lien ~~Collateral~~Collateral to be held in a Term Loan Proceeds Account pending application for such purpose if any Default then exists) ~~shall be paid to the Blocked Accounts as provided in Section 2.21~~ and (ii) no Event of Default shall have occurred and be continuing; (r) exchanges or swaps, including, without limitation, transactions covered by Section 1031 of the Code, of Real Estate Assets so long as the exchange or swap is made for fair value and on an arm’s length basis for other Real Estate Assets; provided that (i) upon the consummation of such exchange or swap, in the case of any Loan Party, the Administrative Agent has a perfected Lien having the same priority as any Lien held on the Real Estate Assets so exchanged or ~~swapped~~swapped 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) (with any Net Proceeds of Term Loan First Lien Collateral under this clause (ii) to be held in a Term Loan Proceeds Account pending application for such purpose if any Default then exists); (s) other sales and dispositions for fair market value in an aggregate amount since the Closing Date of up to the greater of $~~30,000,000~~ 20,000,000 and ~~1.00~~0.75% of the Consolidated Total Assets as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 5.01; provided that any Net Proceeds of a sale or disposition of Term Loan First Lien 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 for a purpose not prohibited by this Agreement if any Default or Event of Default then exists; (i) licensing and cross-licensing arrangements involving any technology or other intellectual property of ~~any~~ either Borrower or any Subsidiary in the ordinary course of business and (ii) dispositions of property in the ordinary course of business consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination of the Borrower Agent, are not material to the conduct of the business of the Borrowers and the Subsidiaries; (u) terminations of Derivative Transactions; and (v) sales or dispositions of Capital Stock of Unrestricted Subsidiaries. To the extent any Collateral is disposed of as expressly permitted by this Section 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, and the Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.

Appears in 1 contract

Samples: Term Loan Credit Agreement (Am-Source, LLC)

Fundamental Changes; Disposition of Assets. ~~The Borrowers and the Subsidiary Guarantors shall not~~No Note Party shall, nor shall ~~they~~ it permit any of ~~their~~ its Subsidiaries to, enter into any transaction of merger or ~~consolidation~~consolidation (including through a plan of division), or liquidate, ~~wind~~ wind-up or dissolve itself (or suffer any liquidation or dissolution), consummate any Asset Sale, or ~~convey, sell, lease or sublease (as lessor or sublessor), transfer or otherwise dispose~~ Dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased (as lessee), or licensed (as licensee), except, subject to Section 4.29: (a) any Subsidiary of Company may be merged ~~or consolidated or amalgamated~~ with or into ~~any Borrower~~ Company or any ~~other Subsidiary~~Guarantor, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor; ~~provided that (i)~~ provided, in the case of such a ~~merger~~merger involving Company, ~~amalgamation or consolidation with or into any Borrower, such Borrower shall be the continuing or surviving Person (or, in the case of any such transaction involving both Borrowers, the Borrower Agent~~ Company shall be the continuing or surviving Person) , and ~~(ii)~~ in the case of any other such a merger, ~~amalgamation or consolidation with or into any Subsidiary Guarantor, either (x) such Subsidiary~~ a Guarantor that is Wholly-Owned by the Company shall be the continuing or surviving ~~Person or (y) such transaction shall be treated as an Investment and shall comply Section 6.07~~Person; (b) ~~sales or~~ the granting of Liens permitted under Section 4.13, Restricted Junior Payments permitted under Section 4.11 and Investments permitted under Section 4.19 (other ~~dispositions among~~ than Section 4.19(l)); (c) Asset Sales, to the ~~Borrowers and their Subsidiaries~~ extent (~~upon voluntary liquidation or otherwise); provided that any~~ 1) the proceeds received for such ~~sales or dispositions by a Loan Party to a Person that is not a Loan Party~~ assets shall be ~~(i) for~~ in an amount at least equal to the fair market value thereof (determined in good faith by the Company), (2) no less than 75% of the total consideration thereof shall consist of Cash paid upon the closing of each applicable Asset Sale (so long as ~~reasonably determined by such Person) and~~ at least ~~75.0~~75% of the consideration ~~for~~ paid upon such ~~sale or disposition consists~~ closing shall consist of ~~Cash or Cash Equivalents payable at~~ Cash), and (3) the ~~time of consummation of such sale or other disposition or (ii) treated as an Investment and~~ Net Asset Sale Proceeds thereof shall be ~~otherwise made in compliance with Section 6.07; (i)~~ applied to the ~~liquidation or dissolution of any Subsidiary (so long as, in~~ extent required by the ~~case~~ provisions of the ~~liquidation or dissolution of the Subsidiary Borrower~~Term Loan Agreement and this Indenture, 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, dissolution or change in form is in the best interests of the Borrowers, is not materially disadvantageous to the Lenders and the Borrowers or any Subsidiary receives any assets of such dissolved or liquidated Subsidiary; provided that in the case of a dissolution or liquidation of a Loan Party that results in a distribution of assets to a Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.07 (other than Section 6.07(j)) and (ii) any merger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect a sale or disposition otherwise permitted under this Section 6.08 (other than clause (a), clause (b) or this clause (c)); provided, further, in the case of a change in the form of entity of any Subsidiary that is a Loan Party, the security interests in the Collateral shall remain in full force and effect and perfected to the same extent as prior to such changeapplicable; (d) any sale, lease, license, transfer or other disposition of property to any Note Party; (xe) ~~sales~~ licenses, sublicenses, leases or ~~leases of inventory or equipment~~ subleases (other than relating to Intellectual Property, in each case) granted to third parties in the ordinary course of business and not interfering with the business of the Company and its Affiliates; (~~including on an intercompany basis~~f) the (i) exclusive and non-exclusive licensing of Intellectual Property (other than Material Intellectual Property), (ii) exclusive and non-exclusive licensing of foreign rights to Oncology Indications of selinexor, (iii) exclusive and non-exclusive licensing of non-Oncology Indications of selinexor, (iv) non-exclusive and non-commercial licensing of Material Intellectual Property for bona fide operating business purposes (as reasonably determined by the Company in good faith) and (yv) exclusive licensing of Material Intellectual Property other than Intellectual Property with respect to selinexor (including any formulations, re-formulations, polymorphs, crystal forms, solvates, amorphous forms, methods of treatment, and methods of manufacture), in each case, so long as the ~~leasing~~ Net Asset Sale Proceeds thereof shall be applied to the extent required under this Indenture; (g) any abandonment, cancellation, non-renewal or ~~subleasing~~ discontinuance of ~~real~~ use or maintenance of Intellectual Property (or rights relating thereto) (other than Material Intellectual Property) of any Note Party that the Company reasonably determines in good faith is no longer desirable in the conduct of its business or is no longer economically practicable to maintain; (h) any Involuntary Disposition or any sale, lease, license or other disposition of property (other than, for the avoidance of doubt, Intellectual Property) in settlement of, or to make payment in satisfaction of, any property or casualty insurance; (i) inventory sold to unaffiliated customers and dispositions consisting of the sale, transfer, discount, assignment or other disposition of unpaid and overdue accounts receivable in connection with the collection, compromise or settlement thereof in the ordinary course of ~~business~~business and not as part of a financing transaction; (ej) ~~(x) disposals of surplus~~the sale, ~~obsolete~~transfer, ~~used or worn out property~~ issuance or other ~~property that, in the reasonable judgment~~ disposition of a de minimis number of shares of the ~~Borrower Agent, is no longer useful~~ Capital Stock of a Foreign Subsidiary of a Note Party in ~~its business and (y) any assets acquired in connection with~~ order to qualify members of the ~~acquisition of another Person or a division or line of business~~ governing body of such ~~Person which the Borrower Agent reasonably determines are surplus assets~~Subsidiary if required by Requirements of Law; (fk) ~~sales~~ dispositions of ~~Cash Equivalents for the fair market value thereof; (g) dispositions, mergers, amalgamations, consolidations or conveyances that constitute Investments permitted pursuant to Section 6.07~~ property (other than Section 6.07(j)), Permitted Liens, Restricted Payments permitted by Section 6.05(a) (other than Section 6.05(a)(ix)) and Sale-Leaseback Transactions permitted by Section 6.10; (h) sales or other dispositions of any assets of the Borrowers or any Subsidiary for fair market value; provided that with respect to sales or dispositions (other than any Store Exchange) in an aggregate amount in excess of the greater of $25,000,000 and 0.75% of the Consolidated Total Assets as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 5.01, at least 75.0% of the consideration for such sale or disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75.0% 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 Agent or a Subsidiary) of any Borrower or any Subsidiary (as shown on such person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets and for which the Borrower Agent and its Subsidiaries shall have been validly released by all 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 sale or disposition, (y) any Securities received by such Subsidiary from such transferee that are converted by such Subsidiary into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable sale or disposition and (z) any Designated Non-Cash Consideration received in respect of such sale or 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 $40,000,000, in each case, shall be deemed to be Cash); provided, further, that (i) immediately prior to and after giving effect to such sale or disposition, no Event of Default shall have occurred that is continuing on the date on which the agreement governing such sale or disposition is executed and (ii) the Net Proceeds of such sale or disposition (including any “cash boot” arising in connection with a Store Exchange) shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b) (with any Net Proceeds of Term Loan First Lien Collateral to be held in a Term Proceeds Account (as defined in the Term Loan Agreement) pending application for such purpose if any Default then exists); (iMaterial Intellectual Property) to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement ~~property~~ property, or other assets of comparable or greater value or usefulness to the business or (ii) an amount equal to the net proceeds of such disposition are promptly applied to the purchase price of such replacement property; (jl) dispositions of Investments in ~~joint ventures~~ Joint Ventures to the extent required by, or made pursuant ~~to,~~ to customary buy/sell arrangements between the ~~joint venture~~ Joint Venture parties set forth ~~in joint venture arrangements~~ in, Joint Venture agreements and similar binding arrangements; (k) sales, discounting or forgiveness of Accounts in the ordinary course of business or in connection with the collection or compromise thereof; (l) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and which (i) do not materially interfere with the business of the Borrowers and their Subsidiaries or (ii) relate to closed stores;; and (m) disposals of used, surplus, obsolete or worn-out property (iother than Intellectual Property) termination of leases in the ordinary course of business, (ii) 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 in the ordinary course of business; (n) transfers of property subject to casualty, eminent domain or condemnation proceedings (including in lieu thereof); (o) licenses for the conduct of licensed departments within the Loan Parties’ stores in the ordinary course of business; (p) as long as (i) no Event of Default then exists or would arise therefrom and (ii) ABL Excess Availability on the date of the proposed transaction (calculated on a Pro Forma Basis) is equal to or greater than 10.0% of the ABL Line Cap, bulk sales or other dispositions of the Loan Parties’ Inventory outside of the ordinary course of business in connection with store closings that are conducted on an arm’s-length basis; provided that such store closures and related Inventory dispositions shall not exceed, in any Fiscal Year 20.0% of the number of the Loan Parties’ stores as of the beginning of such Fiscal Year (net of store relocations (x) occurring substantially contemporaneously with, but in no event later than ten Business Days after, the related store closure date and (y) wherein a binding lease has been entered into for a new store opening prior to the related store closure date); provided, further, that all sales of Inventory in connection with store closings in a transaction or series of related transactions shall be in accordance with liquidation agreements and with professional liquidators reasonably acceptable to the Administrative Agent and proceeds of such sales or other dispositions shall be paid to the Blocked Accounts as provided in Section 2.21; provided, further, that if the Net Proceeds of any sale or disposition of Inventory permitted pursuant to this clause (p) exceeds $20,000,000, the Borrower Agent shall be required to deliver an updated Borrowing Base Certificate to the Administrative Agent within five Business Days of such sale or disposition; (q) sales of non-core assets acquired in connection with a Permitted Acquisition and sales of Real Estate Assets acquired in a Permitted Acquisition which, within 30 days of the date of the acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of a store; provided that (i) all Net Proceeds received in connection therewith (except to the extent constituting Term Loan First Lien Collateral) shall be paid to the Blocked Accounts as provided in Section 2.21 and (ii) no Event of Default shall have occurred and be continuing; (r) exchanges or swaps, including, without limitation, transactions covered by Section 1031 of the Code, of Real Estate Assets so long as the exchange or swap is made for fair value and on an arm’s length basis for other Real Estate Assets; provided that upon the consummation of such exchange or swap, in the case of any Loan Party, the Administrative Agent has a perfected Lien having the same priority as any Lien held on the Real Estate Assets so exchanged or swapped; (s) sales and dispositions for fair market value in an aggregate amount since the Closing Date of up to the greater of $30,000,000 and 1.00% of the Consolidated Total Assets as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 5.01; (i) licensing and cross-licensing arrangements involving any technology or other intellectual property of any Borrower or any Subsidiary in the ordinary course of business and (ii) dispositions of property in the ordinary course of business consisting of the abandonment of intellectual property rights whichis, in the reasonable ~~good faith determination~~ judgment of ~~the Borrower Agent~~such Note Party, ~~are not~~ no longer economically practicable to maintain or no longer used or useful in any material to respect in the conduct of the business of the ~~Borrowers~~ Company and its Subsidiaries taken as a whole. Notwithstanding anything to the ~~Subsidiaries;~~ contrary contained in the Note Security Documents, no Note Party shall, nor shall it permit any of its Subsidiaries to, consummate any “Division” (~~u) terminations of Derivative Transactions; and (v) sales or dispositions of Capital Stock of Unrestricted Subsidiaries. To the extent any Collateral is disposed of~~ as ~~expressly permitted by this~~ defined in Section ~~6.08 to any Person other than a Loan Party, such Collateral shall automatically be sold free and clear~~ 18-217 of the ~~Liens created by the Loan Documents, and the Administrative Agent shall~~ Delaware Limited Liability Company Act) or similar organizational change that may hereafter be ~~authorized to take~~ permitted under any ~~actions deemed appropriate in order to effect the foregoing~~applicable statute.

Appears in 1 contract

Samples: Indenture (Karyopharm Therapeutics Inc.)

Appears in 1 contract

Samples: Abl Credit Agreement (Party City Holdco Inc.)

Fundamental Changes; Disposition of Assets. ~~The Borrowers and the Subsidiary Guarantors~~ Borrower shall ~~not, nor shall they permit any of their Subsidiaries to,~~ not enter into any transaction of merger or consolidation, or liquidate, ~~wind~~ wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or ~~sublease (as lessor or sublessor)~~license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed (including, for the avoidance of doubt, a sale by VLG of Xxxxxxxx’s ratable share of VLG’s Equity Interests in Cablevisión), except: (a) any Subsidiary of Borrower may be merged ~~or consolidated or amalgamated~~ with or into ~~any Borrower~~ Borrower, or be liquidated, wound up or dissolved, or all or any ~~other Subsidiary~~part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower; provided ~~that (i)~~ that, in the case of such a merger, ~~amalgamation or consolidation with or into any Borrower, such~~ Borrower shall be the continuing or surviving ~~Person (or, in the case of any such transaction involving both Borrowers, the Borrower Agent shall be the continuing or surviving~~ Person) and (ii) in the case of such a merger, amalgamation or consolidation with or into any Subsidiary Guarantor, either (x) such Subsidiary Guarantor shall be the continuing or surviving Person or (y) such transaction shall be treated as an Investment and shall comply Section 6.07; (b) sales or other dispositions among the Borrowers and their Subsidiaries (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 (i) for fair market value (as reasonably determined by such Person) and at least 75.0% of the consideration for such sale or disposition consists of Cash or and Cash Equivalents payable at the time of consummation of such sale or other disposition or (ii) treated as an Investment and shall be otherwise made in compliance with Section 6.07; (i) the liquidation or dissolution of any 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, dissolution or change in form is in the best interests of the Borrowers, is not materially disadvantageous to the Lenders and the Borrowers or any Subsidiary receives any assets of such dissolved or liquidated Subsidiary; provided that in the case of a dissolution or liquidation of a Loan Party that results in a distribution of assets to a Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.07 (other than Section 6.07(j)) and (ii) any merger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect a sale or disposition otherwise permitted under this Section 6.08 (other than clause (a), clause (b) or this clause (c)); provided, further, in the case of a change in the form of entity of any Subsidiary that is a Loan Party, the security interests in the Collateral shall remain in full force and effect and perfected to the same extent as prior to such change; (d) (x) sales or leases of inventory or equipment in the ordinary course of business (including on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business; (e) (x) disposals of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower Agent, is no longer useful in its business 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 Agent reasonably determines are surplus assets; (f) sales of Cash Equivalents for the fair market value thereof; (g) dispositions, mergers, amalgamations, consolidations or conveyances that constitute Investments permitted pursuant to Section 6.07 (other than Section 6.07(j)), Permitted Liens, Restricted Payments permitted by Section 6.05(a) (other than Section 6.05(a)(ix)) and Sale-Leaseback Transactions permitted by Section 6.10; (h) sales or other dispositions of any assets of the Borrowers or any Subsidiary for fair market value; provided that with respect to sales or dispositions (other than any Store Exchange) in an aggregate amount in excess of the greater of $25,000,000 and 0.75% of the Consolidated Total Assets as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 5.01, at least 75.0% of the consideration for such sale or disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75.0% 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 Agent or a Subsidiary) of any Borrower or any Subsidiary (as shown on such person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets and for which the Borrower Agent and its Subsidiaries shall have been validly released by all 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 sale or disposition, (y) any Securities received by such Subsidiary from such transferee that are converted by such Subsidiary into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable sale or disposition and (z) any Designated Non-Cash Consideration received in respect of such sale or 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 $40,000,000, in each case, shall be deemed to be Cash); provided, further, that (i) immediately prior to and after giving effect to such sale or disposition, no Event of Default shall have occurred that is continuing on the date on which the agreement governing such sale or disposition is executed and (ii) the Net Proceeds of such sale or disposition (including any “cash boot” arising in connection with a Store Exchange) shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b) (with any Net Proceeds of Term Loan First Lien Collateral to be held in a Term Proceeds Account (as defined in the Term Loan Agreement) pending application for such purpose if any Default then exists); (i) to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of 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, buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (k) sales, discounting or forgiveness of Accounts in the ordinary course of business or ~~in connection with the collection or compromise thereof~~to make payments on Permitted Debt; (lc) ~~leases~~disposals of obsolete, ~~subleases, licenses~~ worn out or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and which (i) do not materially interfere with the business of the Borrowers and their Subsidiaries or (ii) relate to closed storessurplus property; (md) (i) termination of leases in the ordinary course of business, (ii) 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 in the ordinary course of business; (n) transfers of property subject to casualty, eminent domain or condemnation proceedings (including in lieu thereof); (o) licenses for the conduct of licensed departments within the Loan Parties’ stores in the ordinary course of business; (p) as long as (i) no Event of Default then exists or would arise therefrom and (ii) ABL Excess Availability on the date of the proposed transaction (calculated on a Pro Forma Basis) is equal to or greater than 10.0% of the ABL Line Cap, bulk sales or other dispositions of Equity Interests held by Borrower in Cablevisión, VLG or TEO or by VLG in Cablevisión; provided that, in addition to the Collateral, Borrower shall at all times own, directly or indirectly (including through VLG), a total number of Equity Interests in Cablevisión which, when multiplied by the Share Market Value as of the relevant determination date, equals one times the amount of the Loan ~~Parties’ Inventory outside of the ordinary course of business~~ Exposure; (e) any sale or dispositions required by any Governmental Authority in connection with ~~store closings that are conducted on an arm’s-length basis; provided that such store closures and related Inventory dispositions shall not exceed~~the Merger, pursuant to the provisions of Section 13.b) of Argentine Law No. 25,156 or other applicable law; (f) the Merger; (g) Permitted Investments; (h) any contribution or transfer of Equity Interests in Cablevisión, or in any ~~Fiscal Year 20.0% of~~ vehicle holding Equity Interests in Cablevisión, to any voting trust or similar arrangement as contemplated in the ~~number of the Loan Parties~~TEO Shareholders’ ~~stores as of the beginning of such Fiscal Year~~ Agreement; and (~~net of store relocations (x~~i) occurring substantially contemporaneously with, but in no event later than ten Business Days after, the related store closure date and (y) wherein a binding lease has been entered into for a new store opening prior to the related store closure date); provided, further, that all sales of Inventory in connection with store closings in a transaction or series of related transactions shall be in accordance with liquidation agreements and with professional liquidators reasonably acceptable to the Administrative Agent and proceeds of such sales or other dispositions ~~shall be paid to the Blocked Accounts as provided in Section 2.21; provided, further,~~ of assets that if constitute Asset Sales for which the Net Asset Sale Proceeds of any sale or disposition of Inventory permitted pursuant to this clause (p) exceeds $20,000,000, the Borrower Agent shall be required to deliver an updated Borrowing Base Certificate to the Administrative Agent within five Business Days of such sale or disposition; (q) sales of non-core assets acquired are applied in ~~connection~~ accordance with a Permitted Acquisition and sales of Real Estate Assets acquired in a Permitted Acquisition which, within 30 days of the date of the acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of a store; provided that (i) all Net Proceeds received in connection therewith (except to the extent constituting Term Loan First Lien Collateral) shall be paid to the Blocked Accounts as provided in Section 2.21 and (ii) no Event of Default shall have occurred and be continuing; (r) exchanges or swaps, including, without limitation, transactions covered by Section 1031 of the Code, of Real Estate Assets so long as the exchange or swap is made for fair value and on an arm’s length basis for other Real Estate Assets; provided that upon the consummation of such exchange or swap, in the case of any Loan Party, the Administrative Agent has a perfected Lien having the same priority as any Lien held on the Real Estate Assets so exchanged or swapped; (s) sales and dispositions for fair market value in an aggregate amount since the Closing Date of up to the greater of $30,000,000 and 1.00% of the Consolidated Total Assets as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 5.01; (i) licensing and cross-licensing arrangements involving any technology or other intellectual property of any Borrower or any Subsidiary in the ordinary course of business and (ii) dispositions of property in the ordinary course of business consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination of the Borrower Agent, are not material to the conduct of the business of the Borrowers and the Subsidiaries; (u) terminations of Derivative Transactions; and (v) sales or dispositions of Capital Stock of Unrestricted Subsidiaries. To the extent any Collateral is disposed of as expressly permitted by this Section 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, and the Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing2.10(a).

Appears in 1 contract

Samples: Loan Agreement (Cablevision Holding S.A.)

Fundamental Changes; Disposition of Assets. ~~The Borrowers and the Subsidiary Guarantors shall not~~No Borrower shall, nor shall ~~they~~ it permit any of ~~their~~ its Restricted Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, ~~wind up~~ windup or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Consolidated Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or Capital Stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except: : (ack) (i) any ~~Subsidiary~~ Credit Party may be merged ~~or consolidated or amalgamated~~ with or into any ~~Borrower~~ other Credit Party, or be liquidated, wound up or dissolved, or all or any ~~other Subsidiary~~part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to another Credit Party; ~~provided that (i)~~ provided, in the case of such a ~~merger, amalgamation or consolidation with or into any~~ merger (1) involving a Borrower, ~~such~~ a Borrower shall be the continuing or surviving Person ~~(or, in the case of any such transaction involving both Borrowers, the Borrower Agent shall be the continuing or surviving Person)~~ and (ii2) ~~in the case of such a merger, amalgamation or consolidation with or into any Subsidiary Guarantor, either (x) such Subsidiary Guarantor shall be~~ the continuing or surviving Person ~~or (y) such transaction~~ shall be ~~treated as an Investment~~ organized under the laws of a state of the United States and ~~shall comply Section 6.07~~(ii) any Restricted Subsidiary that is not a Credit Party may be merged with or into any other Restricted Subsidiary that is not a Credit Party, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed DOC ID - 36220401.1 of, in one transaction or a series of transactions, to a Credit Party or another Restricted Subsidiary that is not a Credit Party, in each case, to the extent the Borrower Representative believes such action is in such entities’ best interest and is not disadvantageous to the Lenders; (bi) ~~sales~~ any Restricted Subsidiary may dispose of all or ~~other dispositions among the Borrowers and their Subsidiaries~~ substantially all of its assets (upon voluntary liquidation or otherwise~~); provided that~~ ) to any ~~such sales~~ Borrower or ~~dispositions by a Loan Party~~ to a Person that is not a Loan Party shall be (i) for fair market value (as reasonably determined by such Person) and at least 75.0% of the consideration for such sale or disposition consists of Cash or Cash Equivalents payable at the time of consummation of such sale or other disposition or (ii) treated as an Investment and shall be otherwise made in compliance with Section 6.07; (i) the liquidation or dissolution of any 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, dissolution or change in form is in the best interests of the Borrowers, is not materially disadvantageous to the Lenders and the Borrowers or any Subsidiary receives any assets of such dissolved or liquidated another Restricted Subsidiary; provided that ~~in the case of~~ a ~~dissolution or liquidation of a Loan~~ Credit Party ~~that results in a distribution of assets~~ may make such disposition only to a ~~Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.07 (other than Section 6.07(j))~~ Borrower or another Credit Party and (ii) any ~~merger, amalgamation, dissolution, liquidation or consolidation, the purpose of~~ Restricted Subsidiary which is not a Credit Party may dispose of all or substantially all its assets to ~~effect a sale~~ any Borrower or ~~disposition otherwise permitted under this Section 6.08~~ another Restricted Subsidiary; (~~other than clause (a)~~cm) sales, ~~clause (b) or this clause (c)); provided~~leases, further, in the case of a change in the form of entity of any Subsidiary that is a Loan Party, the security interests in the Collateral shall remain in full force and effect and perfected to the same extent as prior to such change; (d) (x) sales or leases of inventory or equipment in the ordinary course of business (including on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business; (e) (x) disposals of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower Agent, is no longer useful in its business 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 Agent reasonably determines are surplus assets; (f) sales of Cash Equivalents for the fair market value thereof; (g) dispositions, mergers, amalgamations, consolidations or conveyances that constitute Investments permitted pursuant to Section 6.07 (other than Section 6.07(j)), Permitted Liens, Restricted Payments permitted by Section 6.05(a) (other than Section 6.05(a)(ix)) and Sale-Leaseback Transactions permitted by Section 6.10; (h) sales licenses or other dispositions of ~~any~~ assets ~~of the Borrowers or any Subsidiary for fair market value; provided~~ that with respect to sales or dispositions (other than any Store Exchange) in an aggregate amount in excess of the greater of $25,000,000 and 0.75% of the Consolidated Total Assets as of the last day of the last Test Period for which financial statements have been delivered do not constitute Asset Sales pursuant to Section 5.01, at least 75.0% of the consideration for such sale or disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75.0% 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 Agent or a Subsidiary) of any Borrower or any Subsidiary (as shown on such person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets and for which the Borrower Agent and its Subsidiaries shall have been validly released by all 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 sale or disposition, (y) any Securities received by such Subsidiary from such transferee that are converted by such Subsidiary into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable sale or disposition and (z) any Designated Non-Cash Consideration received in respect of such sale or 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 $40,000,000, in each case, shall be deemed to be Cash); provided, further, that clauses (i) immediately prior to and after giving effect to such sale or disposition, no Event of Default shall have occurred that is continuing on the date on which the agreement governing such sale or disposition is executed and through (iivi) the Net Proceeds of such sale or disposition (including any “cash boot” arising in connection with a Store Exchange) shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b) (with any Net Proceeds of Term Loan First Lien Collateral to be held in a Term Proceeds Account (as defined in the Term Loan Agreement) pending application for such purpose if any Default then exists); (i) to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of 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, buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (k) sales, discounting or forgiveness of Accounts in the ordinary course of business or in connection with the collection or compromise thereof; (l) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and which (i) do not materially interfere with the business of the ~~Borrowers and their Subsidiaries or (ii) relate to closed stores~~definition of Asset Sale; (m) (i) termination of leases in the ordinary course of business, (ii) 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 in the ordinary course of business; (n) transfers of property subject to casualty, eminent domain or condemnation proceedings (including in lieu thereof); (o) licenses for the conduct of licensed departments within the Loan Parties’ stores in the ordinary course of business; (p) as long as (i) no Event of Default then exists or would arise therefrom and (ii) ABL Excess Availability on the date of the proposed transaction (calculated on a Pro Forma Basis) is equal to or greater than 10.0% of the ABL Line Cap, bulk sales or other dispositions of the Loan Parties’ Inventory outside of the ordinary course of business in connection with store closings that are conducted on an arm’s-length basis; provided that such store closures and related Inventory dispositions shall not exceed, in any Fiscal Year 20.0% of the number of the Loan Parties’ stores as of the beginning of such Fiscal Year (net of store relocations (x) occurring substantially contemporaneously with, but in no event later than ten Business Days after, the related store closure date and (y) wherein a binding lease has been entered into for a new store opening prior to the related store closure date); provided, further, that all sales of Inventory in connection with store closings in a transaction or series of related transactions shall be in accordance with liquidation agreements and with professional liquidators reasonably acceptable to the Administrative Agent and proceeds of such sales or other dispositions shall be paid to the Blocked Accounts as provided in Section 2.21; provided, further, that if the Net Proceeds of any sale or disposition of Inventory permitted pursuant to this clause (p) exceeds $20,000,000, the Borrower Agent shall be required to deliver an updated Borrowing Base Certificate to the Administrative Agent within five Business Days of such sale or disposition; (q) sales of non-core assets acquired in connection with a Permitted Acquisition and sales of Real Estate Assets acquired in a Permitted Acquisition which, within 30 days of the date of the acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of a store; provided that (i) all Net Proceeds received in connection therewith (except to the extent constituting Term Loan First Lien Collateral) shall be paid to the Blocked Accounts as provided in Section 2.21 and (ii) no Event of Default shall have occurred and be continuing; (r) exchanges or swaps, including, without limitation, transactions covered by Section 1031 of the Code, of Real Estate Assets so long as the exchange or swap is made for fair value and on an arm’s length basis for other Real Estate Assets; provided that upon the consummation of such exchange or swap, in the case of any Loan Party, the Administrative Agent has a perfected Lien having the same priority as any Lien held on the Real Estate Assets so exchanged or swapped; (s) sales and dispositions for fair market value in an aggregate amount since the Closing Date of up to the greater of $30,000,000 and 1.00% of the Consolidated Total Assets as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 5.01; (i) licensing and cross-licensing arrangements involving any technology or other intellectual property of any Borrower or any Subsidiary in the ordinary course of business and (ii) dispositions of property in the ordinary course of business consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination of the Borrower Agent, are not material to the conduct of the business of the Borrowers and the Subsidiaries; (u) terminations of Derivative Transactions; and (v) sales or dispositions of Capital Stock of Unrestricted Subsidiaries. To the extent any Collateral is disposed of as expressly permitted by this Section 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, and the Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.

Appears in 1 contract

Samples: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)

Fundamental Changes; Disposition of Assets. The Borrowers and the Subsidiary Guarantors shall not, nor shall they permit any of their Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, except: (a) any Subsidiary may be merged or consolidated or amalgamated with or into ~~any~~ either Borrower or any other Subsidiary; provided that (i) in the case of such a merger, amalgamation or consolidation with or into ~~any~~ either Borrower, such Borrower shall be the continuing or surviving Person (or, in the case of any such transaction involving both Borrowers, the Borrower Agent shall be the continuing or surviving Person) and (ii) in the case of such a merger, amalgamation or consolidation with or into any Subsidiary Guarantor, either (x) such Subsidiary Guarantor shall be the continuing or surviving Person or (y) such transaction shall be treated as an Investment and shall comply Section 6.07; (b) sales or other dispositions among the Borrowers and their Subsidiaries (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 (i) for fair market value (as reasonably determined by such Person) and at least 75.0% of the consideration for such sale or disposition consists of Cash or Cash Equivalents payable at the time of consummation of such sale or other disposition or (ii) treated as an Investment and ~~shall be~~ otherwise made in compliance with Section 6.07; (i) the liquidation or dissolution of any 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, dissolution or change in form is in the best interests of the Borrowers, is not materially disadvantageous to the Lenders and the Borrowers or any Subsidiary receives any assets of such dissolved or liquidated Subsidiary; provided that in the case of a dissolution or liquidation of a Loan Party that results in a distribution of assets to a Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.07 (other than Section 6.07(j)) and (ii) any merger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect a sale or disposition otherwise permitted under this Section 6.08 (other than clause (a), clause (b) or this clause (c)); provided, further, in the case of a change in the form of entity of any Subsidiary that is a Loan Party, the security interests in the Collateral shall remain in full force and effect and perfected to the same extent as prior to such change; (d) (x) sales or leases of inventory or equipment in the ordinary course of business (including on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business; (e) (x) disposals of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower Agent, is no longer useful in its business 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 Agent reasonably determines are surplus assets; (f) sales of Cash Equivalents for the fair market value thereof; (g) dispositions, mergers, amalgamations, consolidations or conveyances that constitute Investments permitted pursuant to Section 6.07 (other than Section 6.07(j)), Permitted Liens, Restricted Payments permitted by Section 6.05(a) (other than Section 6.05(a)(ix)) and Sale-Leaseback Transactions permitted by Section 6.10; (h) sales or other dispositions of any assets of the Borrowers or any Subsidiary for fair market value; provided that with respect to sales or dispositions (other than any Store Exchange) in an aggregate amount in excess of the greater of $25,000,000 and 0.75% of the Consolidated Total Assets as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 5.01, at least 75.0% of the consideration for such sale or disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75.0% 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 Agent or a Subsidiary) of any Borrower or any Subsidiary (as shown on such person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets and for which the Borrower Agent and its Subsidiaries shall have been validly released by all 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 sale or disposition, (y) any Securities received by such Subsidiary from such transferee that are converted by such Subsidiary into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable sale or disposition and (z) any Designated Non-Cash Consideration received in respect of such sale or 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 $40,000,000, in each case, shall be deemed to be Cash); provided, further, that (i) immediately prior to and after giving effect to such sale or disposition, no Event of Default shall have occurred that is continuing on the date on which the agreement governing such sale or disposition is executed and (ii) the Net Proceeds of such sale or disposition (including any “cash boot” arising in connection with a Store Exchange) shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b) (with any Net Proceeds of Term Loan First Lien Collateral to be held in a Term Proceeds Account (as defined in the Term Loan Agreement) pending application for such purpose if any Default then exists); (i) to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of 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, buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (k) sales, discounting or forgiveness of Accounts in the ordinary course of business or in connection with the collection or compromise thereof; (l) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and which (i) do not materially interfere with the business of the Borrowers and their Subsidiaries or (ii) relate to closed stores; (m) (i) termination of leases in the ordinary course of business, (ii) 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 in the ordinary course of business; (n) transfers of property subject to casualty, eminent domain or condemnation proceedings (including in lieu thereof); (o) licenses for the conduct of licensed departments within the Loan Parties’ stores in the ordinary course of business; (p) as long as (i) no Event of Default then exists or would arise therefrom and (ii) ABL Excess Availability on the date of the proposed transaction (calculated on a Pro Forma Basis) is equal to or greater than 10.0% of the ABL Line Cap, bulk sales or other dispositions of the Loan Parties’ Inventory outside of the ordinary course of business in connection with store closings that are conducted on an arm’s-length basis; provided that such store closures and related Inventory dispositions shall not exceed, in any Fiscal Year 20.0% of the number of the Loan Parties’ stores as of the beginning of such Fiscal Year (net of store relocations (x) occurring substantially contemporaneously with, but in no event later than ten Business Days after, the related store closure date and (y) wherein a binding lease has been entered into for a new store opening prior to the related store closure date); provided, further, that all sales of Inventory in connection with store closings in a transaction or series of related transactions shall be in accordance with liquidation agreements and with professional liquidators reasonably acceptable to the Administrative Agent and proceeds of such sales or other dispositions shall be paid to the Blocked Accounts as provided in Section 2.21; provided, further, that if the Net Proceeds of any sale or disposition of Inventory permitted pursuant to this clause (p) exceeds $20,000,000, the Borrower Agent shall be required to deliver an updated Borrowing Base Certificate to the Administrative Agent within five Business Days of such sale or disposition; (q) sales of non-core assets acquired in connection with a Permitted Acquisition and sales of Real Estate Assets acquired in a Permitted Acquisition which, within 30 days of the date of the acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of a store; provided that (i) all Net Proceeds received in connection therewith (except to the extent constituting Term Loan First Lien Collateral) shall be paid to the Blocked Accounts as provided in Section 2.21 and (ii) no Event of Default shall have occurred and be continuing; (r) exchanges or swaps, including, without limitation, transactions covered by Section 1031 of the Code, of Real Estate Assets so long as the exchange or swap is made for fair value and on an arm’s length basis for other Real Estate Assets; provided that upon the consummation of such exchange or swap, in the case of any Loan Party, the Administrative Agent has a perfected Lien having the same priority as any Lien held on the Real Estate Assets so exchanged or swapped; (s) sales and dispositions for fair market value in an aggregate amount since the Closing Date of up to the greater of $30,000,000 and 1.00% of the Consolidated Total Assets as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 5.01; (i) licensing and cross-licensing arrangements involving any technology or other intellectual property of any Borrower or any Subsidiary in the ordinary course of business and (ii) dispositions of property in the ordinary course of business consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination of the Borrower Agent, are not material to the conduct of the business of the Borrowers and the Subsidiaries; (u) terminations of Derivative Transactions; and (v) sales or dispositions of Capital Stock of Unrestricted Subsidiaries. To the extent any Collateral is disposed of as expressly permitted by this Section 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, and the Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.

Appears in 1 contract

Samples: Term Loan Credit Agreement (Party City Holdco Inc.)

Appears in 1 contract

Samples: Abl Credit Agreement (Party City Holdco Inc.)

Fundamental Changes; Disposition of Assets. ~~The Borrowers and the Subsidiary Guarantors shall not~~No Credit Party shall, nor shall ~~they~~ it permit any of ~~their~~ its Subsidiaries (other than Non-Recourse Subsidiaries) to, enter into any transaction of merger or ~~consolidation~~consolidation (other than in connection with an Investment permitted pursuant to Section 6.6), or liquidate, ~~wind~~ wind-up or dissolve itself (or suffer any liquidation or dissolution)) into any other Person, or convey, sell, lease or ~~sublease (as lessor or sublessor)~~license, ~~transfer~~ exchange, transfer, assign, pledge or otherwise dispose ofof or encumber, in one transaction or a series of transactions, all or any part of its Equity Interests in any of its Subsidiaries (other than to qualify directors if required by applicable law), business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed except: (a) any Subsidiary of Borrower (other than a Pledged Holdco) may be merged ~~or consolidated or amalgamated~~ with or into ~~any~~ Borrower or any ~~other~~ Guarantor Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any Guarantor Subsidiary; provided ~~that (i)~~ that, in the case of such a merger, ~~amalgamation~~ Borrower or ~~consolidation with or into any Borrower~~such Guarantor Subsidiary, ~~such Borrower shall be the continuing or surviving Person (or~~as applicable, ~~in the case of any such transaction involving both Borrowers, the Borrower Agent~~ shall be the continuing or surviving Person) and (ii) in the case of such a merger, amalgamation or consolidation with or into any Subsidiary Guarantor, either (x) such Subsidiary Guarantor shall be the continuing or surviving Person or (y) such transaction shall be treated as an Investment and shall comply Section 6.07; (b) sales or other dispositions among the Borrowers and their Subsidiaries (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 (i) for fair market value (as reasonably determined by such Person) and at least 75.0% of the consideration for such sale or disposition consists of Cash or Cash Equivalents payable at the time of consummation of such sale or other disposition or (ii) treated as an Investment and shall be otherwise made in compliance with Section 6.07[Reserved]; (i) the liquidation or dissolution of any 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, dissolution or change in form is in the best interests of the Borrowers, is not materially disadvantageous to the Lenders and the Borrowers or any Subsidiary receives any assets of such dissolved or liquidated Subsidiary; provided that in the case of a dissolution or liquidation of a Loan Party that results in a distribution of assets to a Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.07 (other than Section 6.07(j)) and (ii) any merger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect a sale or disposition otherwise permitted under this Section 6.08 (other than clause (a), clause (b) or this clause (c)); provided, further, in the case of a change in the form of entity of any Subsidiary that is a Loan Party, the security interests in the Collateral shall remain in full force and effect and perfected to the same extent as prior to such change; (d) (x) sales or leases of inventory or equipment in the ordinary course of business (including on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business; (e) (x) disposals of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower Agent, is no longer useful in its business 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 Agent reasonably determines are surplus assets; (f) sales of Cash Equivalents for the fair market value thereof; (g) dispositions, mergers, amalgamations, consolidations or conveyances that constitute Investments permitted pursuant to Section 6.07 (other than Section 6.07(j)), Permitted Liens, Restricted Payments permitted by Section 6.05(a) (other than Section 6.05(a)(ix)) and Sale-Leaseback Transactions permitted by Section 6.10; (h) sales or other dispositions of ~~any~~ assets ~~of the Borrowers or any Subsidiary for fair market value~~that do not constitute Asset Sales; (d) Asset Sales; provided that ~~with respect to sales or dispositions~~ (~~other than any Store Exchange~~1) the consideration received for such assets shall be in an ~~aggregate~~ amount at least equal to the fair market value thereof (determined in ~~excess~~ good faith by the manager of ~~the greater of $25,000,000 and 0.75~~Holdings), (2) no less than 75% of ~~the Consolidated Total Assets as~~ such consideration shall be paid in Cash and (3) immediately prior to any such Asset Sale and immediately after giving effect thereto, no Event of ~~the last day of the last Test Period for which financial statements~~ Default shall have ~~been delivered pursuant to Section 5.01~~occurred and be continuing or would result therefrom; provided, ~~at least 75.0% of the consideration for such sale or disposition shall consist of Cash or Cash Equivalents (provided that~~ further, that, for purposes of this clause (d), (i) any consideration in the ~~75.0%~~ form of Cash Equivalents that are disposed of for Cash within 30 Business Days after such Asset Sale shall be deemed to be Cash consideration ~~requirement (w)~~ in an amount equal to the amount of such Cash consideration, (ii) any ~~Indebtedness or other~~ liabilities ~~(other than Indebtedness or other liabilities that are subordinated to the Obligations or that are owed to the Borrower Agent or a Subsidiary) of any Borrower or any Subsidiary~~ (as shown on ~~such person’s~~ the most recent balance sheet of Holdings and its Subsidiaries) of Holdings or any of its Subsidiaries, other than liabilities that are by their terms subordinated to the payment in cash of the ~~notes thereto)~~ Obligations, that are assumed by the transferee ~~of any~~ with respect to the such ~~assets~~ Asset Sale and for which ~~the Borrower Agent~~ Holdings and its Subsidiaries shall have been validly released by all applicable creditors in ~~writing, (x) the~~ writing shall be deemed to be Cash consideration in an amount ~~of any trade-in value applied~~ equal to the purchase price of any replacement assets acquired in connection with such sale or disposition, (y) any Securities received by such Subsidiary from such transferee that are converted by such Subsidiary into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable sale or disposition liabilities so assumed and (ziii) any Designated Non-Cash Consideration received by Holdings or any of its Subsidiaries in respect of such ~~sale or disposition~~ Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (ziii) that is at that time outstanding, not in excess of ~~$40,000,000, in each case, shall be deemed to be Cash); provided, further, that (i) immediately prior to and after giving effect to such sale or disposition, no Event~~ the greater of Default shall have occurred that is continuing on the date on which the agreement governing such sale or disposition is executed and (ii) the Net Proceeds of such sale or disposition (including any “cash boot” arising in connection with a Store Exchange) shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b) (with any Net Proceeds of Term Loan First Lien Collateral to be held in a Term Proceeds Account (as defined in the Term Loan Agreement) pending application for such purpose if any Default then exists); (i) to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of 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, buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (k) sales, discounting or forgiveness of Accounts in the ordinary course of business or in connection with the collection or compromise thereof; (l) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and which (i) do not materially interfere with the business of the Borrowers and their Subsidiaries or (ii) relate to closed stores; (m) (i) termination of leases in the ordinary course of business, (ii) 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 in the ordinary course of business; (n) transfers of property subject to casualty, eminent domain or condemnation proceedings (including in lieu thereof); (o) licenses for the conduct of licensed departments within the Loan Parties’ stores in the ordinary course of business; (p) as long as (i) no Event of Default then exists or would arise therefrom and (ii) ABL Excess Availability on the date of the proposed transaction (calculated on a Pro Forma Basis) is equal to or greater than 10.0% of the ABL Line Cap, bulk sales or other dispositions of the Loan Parties’ Inventory outside of the ordinary course of business in connection with store closings that are conducted on an arm’s-length basis; provided that such store closures and related Inventory dispositions shall not exceed, in any Fiscal Year 20.0% of the number of the Loan Parties’ stores as of the beginning of such Fiscal Year (net of store relocations (x) ~~occurring substantially contemporaneously with, but in no event later than ten Business Days after, the related store closure date~~ $50,000,000 and (y) wherein a binding lease has been entered into for a new store opening prior to the related store closure date); provided, further, that all sales of Inventory in connection with store closings in a transaction or series of related transactions shall be in accordance with liquidation agreements and with professional liquidators reasonably acceptable to the Administrative Agent and proceeds of such sales or other dispositions shall be paid to the Blocked Accounts as provided in Section 2.21; provided, further, that if the Net Proceeds of any sale or disposition of Inventory permitted pursuant to this clause (p) exceeds $20,000,000, the Borrower Agent shall be required to deliver an updated Borrowing Base Certificate to the Administrative Agent within five Business Days of such sale or disposition; (q) sales of non-core assets acquired in connection with a Permitted Acquisition and sales of Real Estate Assets acquired in a Permitted Acquisition which, within 30 days of the date of the acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of a store; provided that (i) all Net Proceeds received in connection therewith (except to the extent constituting Term Loan First Lien Collateral) shall be paid to the Blocked Accounts as provided in Section 2.21 and (ii) no Event of Default shall have occurred and be continuing; (r) exchanges or swaps, including, without limitation, transactions covered by Section 1031 of the Code, of Real Estate Assets so long as the exchange or swap is made for fair value and on an arm’s length basis for other Real Estate Assets; provided that upon the consummation of such exchange or swap, in the case of any Loan Party, the Administrative Agent has a perfected Lien having the same priority as any Lien held on the Real Estate Assets so exchanged or swapped; (s) sales and dispositions for fair market value in an aggregate amount since the Closing Date of up to the greater of $30,000,000 and 1.001.50% of ~~the~~ Consolidated Total Assets as of the last day of the ~~last Test Period for which financial statements have been delivered pursuant~~ Fiscal Quarter most recently ended, 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 ~~Section 5.01~~subsequent changes in value, shall be deemed to be Cash consideration; (ie) ~~licensing and cross~~disposals of obsolete, worn out or surplus property; (f) the lease, as lessor or sublessor, or license (other than any long-~~licensing arrangements involving any technology~~ term exclusive license), as licensor or ~~other intellectual~~ sublicensor, of real or personal property ~~of any Borrower~~ or ~~any Subsidiary~~ Intellectual Property in the ordinary course of business and ~~(ii) dispositions of property~~ not interfering in any respect with the ordinary ~~course of business consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination of the Borrower Agent, are not material to the~~ conduct of or materially detracting from the business of ~~the Borrowers and the Subsidiaries~~Holdings or any Subsidiary; (ug) ~~terminations~~ internal corporate reorganizations of ~~Derivative Transactions; and~~the Subsidiaries of any Project Holdco; (vh) ~~sales~~ the issuance or ~~dispositions~~ sale by Holdings of Capital Stock of Unrestricted Subsidiaries. To the extent any Collateral is disposed of as expressly permitted by this Section 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, and the Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.its Equity Interests; (i) [reserved];

Appears in 1 contract

Samples: Credit and Guaranty Agreement (TerraForm Power, Inc.)

Fundamental Changes; Disposition of Assets. The Borrowers and the Subsidiary Guarantors shall not, nor shall they permit any of their Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, except: (a) any Subsidiary may be merged or consolidated or amalgamated with or into any Borrower or any other Subsidiary; provided that (i) in the case of such a merger, amalgamation or consolidation with or into any Borrower, such Borrower shall be the continuing or surviving Person (or, in the case of any such transaction involving both Borrowers, the Borrower Agent shall be the continuing or surviving Person) and (ii) in the case of such a merger, amalgamation or consolidation with or into any Subsidiary Guarantor, either (x) such Subsidiary Guarantor shall be the continuing or surviving Person or (y) such transaction shall be treated as an Investment and shall comply Section 6.07; (b) sales or other dispositions among the Borrowers and their Subsidiaries (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 (i) for fair market value (as reasonably determined by such Person) and at least 75.0% of the consideration for such sale or disposition consists of Cash or Cash Equivalents payable at the time of consummation of such sale or other disposition or (ii) treated as an Investment and shall be otherwise made in compliance with Section 6.07; (i) the liquidation or dissolution of any 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, dissolution or change in form is in the best interests of the Borrowers, is not materially disadvantageous to the Lenders and the Borrowers or any Subsidiary receives any assets of such dissolved or liquidated Subsidiary; provided that in the case of a dissolution or liquidation of a Loan Party that results in a distribution of assets to a Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.07 (other than Section 6.07(j)) and (ii) any merger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect a sale or disposition otherwise permitted under this Section 6.08 (other than clause (a), clause (b) or this clause (c)); provided, further, in the case of a change in the form of entity of any Subsidiary that is a Loan Party, the security interests in the Collateral shall remain in full force and effect and perfected to the same extent as prior to such change; (d) (x) sales or leases of inventory or equipment in the ordinary course of business (including on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business; (e) (x) disposals of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower Agent, is no longer useful in its business 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 Agent reasonably determines are surplus assets; (f) sales of Cash Equivalents for the fair market value thereof; (g) dispositions, mergers, amalgamations, consolidations or conveyances that constitute Investments permitted pursuant to Section 6.07 (other than Section 6.07(j)), Permitted Liens, Restricted Payments permitted by Section 6.05(a) (other than Section 6.05(a)(ix)) and Sale-Leaseback Transactions permitted by Section 6.10; (h) sales or other dispositions of any assets of the Borrowers or any Subsidiary for fair market value; provided that with respect to sales or dispositions (other than any Store Exchange) in an aggregate amount in excess of the greater of $~~25,000,000~~ 15,000,000 and ~~0.75~~0.50% of the Consolidated Total Assets as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 5.01, at least 75.0% of the consideration for such sale or disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75.0% 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 Agent or a Subsidiary) of any Borrower or any Subsidiary (as shown on such person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets and for which the Borrower Agent and its Subsidiaries shall have been validly released by all 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 sale or disposition, (y) any Securities received by such Subsidiary from such transferee that are converted by such Subsidiary into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable sale or disposition and (z) any Designated Non-Cash Consideration received in respect of such sale or 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 $~~40,000,000~~25,000,000, in each case, shall be deemed to be Cash); provided, further, that (i) immediately prior to and after giving effect to such sale or disposition, no Event of Default shall have occurred that is continuing on the date on which the agreement governing such sale or disposition is executed and (ii) the Net Proceeds of such sale or disposition (including any “cash boot” arising in connection with a Store Exchange) shall be applied and/or reinvested as (and to the extent) required by Section ~~2.11(b~~2.11(b)(ii) (with any Net Proceeds of Term Loan First Lien Collateral to be held in a Term Loan Proceeds Account (as defined in the Term Loan Agreement) pending application for such purpose if any Default then exists); (i) to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of 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, buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (k) sales, discounting or forgiveness of Accounts in the ordinary course of business or in connection with the collection or compromise thereof; (l) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and which (i) do not materially interfere with the business of the Borrowers and their Subsidiaries or (ii) relate to closed stores; (m) (i) termination of leases in the ordinary course of business, (ii) 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 in the ordinary course of business; (n) transfers of property subject to casualty, eminent domain or condemnation proceedings (including in lieu thereof); (o) licenses for the conduct of licensed departments within the Loan Parties’ stores in the ordinary course of business; (p) as long as (i) no Event of Default then exists or would arise therefrom and (ii) ~~ABL~~ Excess Availability on the date of the proposed transaction (calculated on a Pro Forma Basis) is equal to or greater than 10.0% of the ~~ABL~~ Line Cap, bulk sales or other dispositions of the Loan Parties’ Inventory outside of the ordinary course of business in connection with store closings that are conducted on an arm’s-length basis; provided that such store closures and related Inventory dispositions shall not exceed, in any Fiscal Year 20.0% of the number of the Loan Parties’ stores as of the beginning of such Fiscal Year (net of store relocations (x) occurring substantially contemporaneously with, but in no event later than ten Business Days after, the related store closure date and (y) wherein a binding lease has been entered into for a new store opening prior to the related store closure date); provided, further, that all sales of Inventory in connection with store closings in a transaction or series of related transactions shall be in accordance with liquidation agreements and with professional liquidators reasonably acceptable to the Administrative Agent and proceeds of such sales or other dispositions shall be paid to the Blocked Accounts as provided in Section 2.21; provided, further, that if the Net Proceeds of any sale or disposition of Inventory permitted pursuant to this clause (p) exceeds $20,000,000, the Borrower Agent shall be required to deliver an updated Borrowing Base Certificate to the Administrative Agent within five Business Days of such sale or disposition; (q) sales of non-core assets acquired in connection with a Permitted Acquisition and sales of Real Estate Assets acquired in a Permitted Acquisition which, within 30 days of the date of the acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of a store; provided that (i) all Net Proceeds received in connection therewith (except to the extent constituting Term Loan First Lien Collateral) shall be paid to the Blocked Accounts as provided in Section 2.21 and (ii) no Event of Default shall have occurred and be continuing; (r) exchanges or swaps, including, without limitation, transactions covered by Section 1031 of the Code, of Real Estate Assets so long as the exchange or swap is made for fair value and on an arm’s length basis for other Real Estate Assets; provided that upon the consummation of such exchange or swap, in the case of any Loan Party, the Administrative Agent has a perfected Lien having the same priority as any Lien held on the Real Estate Assets so exchanged or swapped; (s) other sales and dispositions for fair market value in an aggregate amount since the Closing Date of up to the greater of $~~30,000,000~~ 20,000,000 and ~~1.00~~0.75% of the Consolidated Total Assets as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 5.01; (i) licensing and cross-licensing arrangements involving any technology or other intellectual property of any Borrower or any Subsidiary in the ordinary course of business and (ii) dispositions of property in the ordinary course of business consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination of the Borrower Agent, are not material to the conduct of the business of the Borrowers and the Subsidiaries; (u) terminations of Derivative Transactions; and (v) sales or dispositions of Capital Stock of Unrestricted Subsidiaries. To the extent any Collateral is disposed of as expressly permitted by this Section 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, and the Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.

Appears in 1 contract

Samples: Abl Credit Agreement (Am-Source, LLC)

Fundamental Changes; Disposition of Assets. ~~The Borrowers and the Subsidiary Guarantors shall not~~No Credit Party shall, nor shall ~~they~~ it permit any of ~~their~~ its Subsidiaries (other than Non-Recourse Subsidiaries) to, enter into any transaction of merger or ~~consolidation~~consolidation (other than in connection with an Investment permitted pursuant to Section 6.6), or liquidate, ~~wind~~ wind-up or dissolve itself (or suffer any liquidation or dissolution)) into any other Person, or convey, sell, lease or ~~sublease (as lessor or sublessor)~~license, ~~transfer~~ exchange, transfer, assign, pledge or otherwise dispose ofof or encumber, in one transaction or a series of transactions, all or any part of its Equity Interests in any of its Subsidiaries (other than to qualify directors if required by applicable law), business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed except: (a) any Subsidiary of Borrower (other than a Pledged Holdco) may be merged ~~or consolidated or amalgamated~~ with or into ~~any~~ Borrower or any ~~other~~ Guarantor Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any Guarantor Subsidiary; provided ~~that (i)~~ that, in the case of such a merger, ~~amalgamation~~ Borrower or ~~consolidation with or into any Borrower~~such Guarantor Subsidiary, ~~such Borrower shall be the continuing or surviving Person (or~~as applicable, ~~in the case of any such transaction involving both Borrowers, the Borrower Agent~~ shall be the continuing or surviving Person) and (ii) in the case of such a merger, amalgamation or consolidation with or into any Subsidiary Guarantor, either (x) such Subsidiary Guarantor shall be the continuing or surviving Person or (y) such transaction shall be treated as an Investment and shall comply Section 6.07; (b) sales or other dispositions among the Borrowers and their Subsidiaries (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 (i) for fair market value (as reasonably determined by such Person) and at least 75.0% of the consideration for such sale or disposition consists of Cash or Cash Equivalents payable at the time of consummation of such sale or other disposition or (ii) treated as an Investment and shall be otherwise made in compliance with Section 6.07[Reserved]; (i) the liquidation or dissolution of any 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, dissolution or change in form is in the best interests of the Borrowers, is not materially disadvantageous to the Lenders and the Borrowers or any Subsidiary receives any assets of such dissolved or liquidated Subsidiary; provided that in the case of a dissolution or liquidation of a Loan Party that results in a distribution of assets to a Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.07 (other than Section 6.07(j)) and (ii) any merger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect a sale or disposition otherwise permitted under this Section 6.08 (other than clause (a), clause (b) or this clause (c)); provided, further, in the case of a change in the form of entity of any Subsidiary that is a Loan Party, the security interests in the Collateral shall remain in full force and effect and perfected to the same extent as prior to such change; (d) (x) sales or leases of inventory or equipment in the ordinary course of business (including on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business; (e) (x) disposals of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower Agent, is no longer useful in its business 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 Agent reasonably determines are surplus assets; (f) sales of Cash Equivalents for the fair market value thereof; (g) dispositions, mergers, amalgamations, consolidations or conveyances that constitute Investments permitted pursuant to Section 6.07 (other than Section 6.07(j)), Permitted Liens, Restricted Payments permitted by Section 6.05(a) (other than Section 6.05(a)(ix)) and Sale-Leaseback Transactions permitted by Section 6.10; (h) sales or other dispositions of ~~any~~ assets ~~of the Borrowers or any Subsidiary for fair market value~~that do not constitute Asset Sales; (d) Asset Sales; provided that ~~with respect to sales or dispositions~~ (~~other than any Store Exchange~~1) the consideration received for such assets shall be in an ~~aggregate~~ amount at least equal to the fair market value thereof (determined in ~~excess~~ good faith by the manager of ~~the greater of $25,000,000 and 0.75~~Holdings), (2) no less than 75% of ~~the Consolidated Total Assets as~~ such consideration shall be paid in Cash and (3) immediately prior to any such Asset Sale and immediately after giving effect thereto, no Event of ~~the last day of the last Test Period for which financial statements~~ Default shall have ~~been delivered pursuant to Section 5.01~~occurred and be continuing or would result therefrom; provided, ~~at least 75.0% of the consideration for such sale or disposition shall consist of Cash or Cash Equivalents (provided that~~ further, that, for purposes of this clause (d), (i) any consideration in the ~~75.0%~~ form of Cash Equivalents that are disposed of for Cash within 30 Business Days after such Asset Sale shall be deemed to be Cash consideration ~~requirement (w)~~ in an amount equal to the amount of such Cash consideration, (ii) any ~~Indebtedness or other~~ liabilities ~~(other than Indebtedness or other liabilities that are subordinated to the Obligations or that are owed to the Borrower Agent or a Subsidiary) of any Borrower or any Subsidiary~~ (as shown on ~~such person’s~~ the most recent balance sheet of Holdings and its Subsidiaries) of Holdings or any of its Subsidiaries, other than liabilities that are by their terms subordinated to the payment in cash of the ~~notes thereto)~~ Obligations, that are assumed by the transferee ~~of any~~ with respect to the such ~~assets~~ Asset Sale and for which ~~the Borrower Agent~~ Holdings and its Subsidiaries shall have been validly released by all applicable creditors in ~~writing, (x) the~~ writing shall be deemed to be Cash consideration in an amount ~~of any trade-in value applied~~ equal to the purchase price of any replacement assets acquired in connection with such sale or disposition, (y) any Securities received by such Subsidiary from such transferee that are converted by such Subsidiary into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable sale or disposition liabilities so assumed and (ziii) any Designated Non-Cash Consideration received by Holdings or any of its Subsidiaries in respect of such ~~sale or disposition~~ Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (ziii) that is at that time outstanding, not in excess of ~~$40,000,000, in each case, shall be deemed to be Cash); provided, further, that (i) immediately prior to and after giving effect to such sale or disposition, no Event~~ the greater of Default shall have occurred that is continuing on the date on which the agreement governing such sale or disposition is executed and (ii) the Net Proceeds of such sale or disposition (including any “cash boot” arising in connection with a Store Exchange) shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b) (with any Net Proceeds of Term Loan First Lien Collateral to be held in a Term Proceeds Account (as defined in the Term Loan Agreement) pending application for such purpose if any Default then exists); (i) to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of 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, buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (k) sales, discounting or forgiveness of Accounts in the ordinary course of business or in connection with the collection or compromise thereof; (l) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and which (i) do not materially interfere with the business of the Borrowers and their Subsidiaries or (ii) relate to closed stores; (m) (i) termination of leases in the ordinary course of business, (ii) 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 in the ordinary course of business; (n) transfers of property subject to casualty, eminent domain or condemnation proceedings (including in lieu thereof); (o) licenses for the conduct of licensed departments within the Loan Parties’ stores in the ordinary course of business; (p) as long as (i) no Event of Default then exists or would arise therefrom and (ii) ABL Excess Availability on the date of the proposed transaction (calculated on a Pro Forma Basis) is equal to or greater than 10.0% of the ABL Line Cap, bulk sales or other dispositions of the Loan Parties’ Inventory outside of the ordinary course of business in connection with store closings that are conducted on an arm’s-length basis; provided that such store closures and related Inventory dispositions shall not exceed, in any Fiscal Year 20.0% of the number of the Loan Parties’ stores as of the beginning of such Fiscal Year (net of store relocations (x) ~~occurring substantially contemporaneously with, but in no event later than ten Business Days after, the related store closure date~~ $50,000,000 and (y) wherein a binding lease has been entered into for a new store opening prior to the related store closure date); provided, further, that all sales of Inventory in connection with store closings in a transaction or series of related transactions shall be in accordance with liquidation agreements and with professional liquidators reasonably acceptable to the Administrative Agent and proceeds of such sales or other dispositions shall be paid to the Blocked Accounts as provided in Section 2.21; provided, further, that if the Net Proceeds of any sale or disposition of Inventory permitted pursuant to this clause (p) exceeds $20,000,000, the Borrower Agent shall be required to deliver an updated Borrowing Base Certificate to the Administrative Agent within five Business Days of such sale or disposition; (q) sales of non-core assets acquired in connection with a Permitted Acquisition and sales of Real Estate Assets acquired in a Permitted Acquisition which, within 30 days of the date of the acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of a store; provided that (i) all Net Proceeds received in connection therewith (except to the extent constituting Term Loan First Lien Collateral) shall be paid to the Blocked Accounts as provided in Section 2.21 and (ii) no Event of Default shall have occurred and be continuing; (r) exchanges or swaps, including, without limitation, transactions covered by Section 1031 of the Code, of Real Estate Assets so long as the exchange or swap is made for fair value and on an arm’s length basis for other Real Estate Assets; provided that upon the consummation of such exchange or swap, in the case of any Loan Party, the Administrative Agent has a perfected Lien having the same priority as any Lien held on the Real Estate Assets so exchanged or swapped; (s) sales and dispositions for fair market value in an aggregate amount since the Closing Date of up to the greater of $30,000,000 and 1.001.50% of ~~the~~ Consolidated Total Assets as of the last day of the ~~last Test Period for which financial statements have been delivered pursuant~~ Fiscal Quarter most recently ended, 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 ~~Section 5.01~~subsequent changes in value, shall be deemed to be Cash consideration; (ie) ~~licensing and cross~~disposals of obsolete, worn out or surplus property; (f) the lease, as lessor or sublessor, or license (other than any long-~~licensing arrangements involving any technology~~ term exclusive license), as licensor or ~~other intellectual~~ sublicensor, of real or personal property ~~of any Borrower~~ or ~~any Subsidiary~~ Intellectual Property in the ordinary course of business and ~~(ii) dispositions of property~~ not interfering in any respect with the ordinary ~~course of business consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination of the Borrower Agent, are not material to the~~ conduct of or materially detracting from the business of ~~the Borrowers and the Subsidiaries~~Holdings or any Subsidiary; (ug) ~~terminations~~ internal corporate reorganizations of ~~Derivative~~ the Subsidiaries of any Project Holdco; (h) the issuance or sale by Holdings of its Equity Interests; (i) [reserved]; (j) Permitted Warrant Transactions; (k) Liens permitted by Section 6.2; and (vl) ~~sales~~ the issuance or ~~dispositions~~ sale by Borrower or any of ~~Capital Stock~~ its Subsidiaries of ~~Unrestricted Subsidiaries. To the extent any Collateral is disposed of as expressly permitted by this Section 6.08~~ Equity Interests ratably 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, and the Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoingtheir respective equity holders.

Appears in 1 contract

Samples: Term Loan and Guaranty Agreement (TerraForm Power, Inc.)

Fundamental Changes; Disposition of Assets. The ~~Borrowers and the Subsidiary Guarantors shall~~ Company will not, nor ~~shall they~~ will it permit any ~~of their Subsidiaries~~ Subsidiary to, (i) enter into any transaction of ~~merger~~ merger, consolidation or ~~consolidation~~Division, or liquidate, ~~wind~~ wind-up or dissolve itself (or suffer any liquidation or dissolution), or (ii) convey, sell, ~~lease or sublease (as lessor or sublessor)~~lease, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter ~~acquired~~acquired or leased or (iii) sell, assign, pledge or otherwise dispose of any Capital Stock of any Subsidiary, except: (a) Any Subsidiary of the Company may merge or consolidate with the Company (including a merger, the purpose of which is to reorganize the Company into a new jurisdiction); provided that (x) the Company shall be the continuing or surviving Person and (y) such merger or consolidation does not result in the Company ceasing to be organized under the Laws of the United States, any ~~Subsidiary~~ State or Commonwealth thereof or the District of Columbia; (i) any Non-Credit Party may ~~be merged~~ merge or ~~consolidated or amalgamated~~ consolidate with or into any ~~Borrower~~ 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 sole purpose of which is to reincorporate or reorganize a Credit Party in another jurisdiction in the United States shall be permitted, so long as the Company provides notice to the Administrative Agent promptly, and in any event no more than five (5) Business Days, after the consummation of such transaction, (iv) any Subsidiary may liquidate or dissolve or change its legal form if the Company determines in good faith that such action is in the best interests of the Company and the Subsidiaries and is not materially disadvantageous to the 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, and (v) any Credit Party or any Subsidiary may conduct a Division that produces two or more surviving or resulting Persons; provided that, if a Division is conducted by a Credit Party, then (A) the Company shall give the Administrative Agent at least five (5) Business Days’ prior written notice (which may be revocable) of such Credit Party’s intention to conduct a Division and (B) each surviving or resulting Person of such Division shall be a Credit Party (and, if the dividing Person is the Company, each surviving or resulting Person shall be a Borrower, unless the Administrative Agent otherwise consents) and shall remain liable for all Obligations (other than Excluded Swap Obligations, where applicable) of the Credit Party conducting the Division; (c) any Subsidiary may dispose of all or substantially all of its assets to the Company or any other Subsidiary; provided that ~~(i) in the case~~ a Guarantor Subsidiary may not dispose of ~~such~~ all or substantially all of its assets to a merger, amalgamation or consolidation with or into any Borrower, such Borrower shall be the continuing or surviving Person (or, in the case of any such transaction involving both Borrowers, the Borrower Agent shall be the continuing or surviving Person) and (ii) in the case of such a merger, amalgamation or consolidation with or into any Subsidiary Guarantor, either (x) such Subsidiary Guarantor shall be the continuing or surviving Person or (y) such transaction shall be Non-Credit Party unless treated as an Investment and shall comply Section 6.07; (b) sales or other dispositions among the Borrowers and their Subsidiaries (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 (i) for fair market value (as reasonably determined~~ permitted by such Person) and at least 75.0% of the consideration for such sale or disposition consists of Cash or Cash Equivalents payable at the time of consummation of such sale or other disposition or (ii) treated as an Investment and shall be otherwise made in compliance with Section 6.07; (i) the liquidation or dissolution of any 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, dissolution or change in form is in the best interests of the Borrowers, is not materially disadvantageous to the Lenders and the Borrowers or any Subsidiary receives any assets of such dissolved or liquidated Subsidiary; provided that in the case of a dissolution or liquidation of a Loan Party that results in a distribution of assets to a Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.07 (other than Section 6.07(j)) and (ii) any merger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect a sale or disposition otherwise permitted under this Section 6.08 (other than clause (a), clause (b) or this clause (c)); provided, further, in the case of a change in the form of entity of any Subsidiary that is a Loan Party, the security interests in the Collateral shall remain in full force and effect and perfected to the same extent as prior to such change;6.6. (d) ~~(x) sales~~ conveyances, sales, leases, exchanges, transfers or ~~leases of inventory or equipment in the ordinary course of business (including on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business~~other dispositions that do not constitute Asset Sales; (e) Asset Sales; provided that (xi) ~~disposals of surplus, obsolete, used or worn out property or other property that,~~ the consideration received for such assets is in the reasonable judgment of the Borrower Agent, is no longer useful in its business 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 Agent reasonably determines are surplus assets; (f) sales of Cash Equivalents for an amount at least equal to the fair market value ~~thereof;~~ thereof (~~g) dispositions, mergers, amalgamations, consolidations or conveyances that constitute Investments permitted pursuant to Section 6.07 (other than Section 6.07(j)~~determined in good faith by the Company), ~~Permitted Liens, Restricted Payments permitted by Section 6.05(a~~(ii) no less than 75% of which will paid in cash and (~~other than Section 6.05(a)(ix)~~iii) no Default or Event of Default has occurred and ~~Sale-Leaseback Transactions permitted by Section 6.10; (h) sales~~ is continuing or ~~other dispositions of any assets of the Borrowers or any Subsidiary for fair market value~~would result therefrom; provided that with respect to sales or dispositions (other than any Store Exchange) in an aggregate amount in excess of the greater of $25,000,000 and 0.75% of the Consolidated Total Assets as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 5.01further, ~~at least 75.0% of the consideration for such sale or disposition shall consist of Cash or Cash Equivalents (provided~~ that for the purposes of ~~the 75.0% Cash consideration requirement~~ clause (~~w) the amount of~~ ii), any ~~Indebtedness or other~~ liabilities ~~(other than Indebtedness or other liabilities that are subordinated to the Obligations or that are owed to the Borrower Agent or a Subsidiary) of any Borrower or any Subsidiary~~ (as shown on ~~such person~~the Company’s most recent balance sheet provided hereunder or in the ~~notes~~ footnotes thereto) of the Company, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee ~~of any such assets~~ with respect to the applicable Asset Sale and for which the ~~Borrower Agent~~ Company and ~~its~~ all of the Subsidiaries shall have been validly released by all applicable creditors in writing; provided further, that the Company and the Subsidiaries may not sell All or Substantially All of their assets, taken as a whole, to any Person in reliance on this clause (xe); (f) the ~~amount of~~ Company and the Subsidiaries may lease (as lessee) or license (as licensee) real or personal property so long as any ~~trade-in value applied~~ such lease or license does not create a Capital Lease except to the ~~purchase price of~~ extent permitted by Section 6.1(d); (g) any ~~replacement assets acquired~~ transaction (other than an Asset Sale) in connection with ~~such sale~~ a Permitted Acquisition or ~~disposition~~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; (yh) ~~any Securities received by such Subsidiary from such transferee~~ sales, leases, assignments, conveyances, transfers, licenses, exchanges or dispositions of other assets; provided that ~~are converted by such Subsidiary into Cash or Cash Equivalents (to~~ in no event shall the ~~extent~~ aggregate net book value of the ~~Cash~~ assets sold, leased, assigned, conveyed, transferred, licensed, exchanged or ~~Cash Equivalents received) within 180 days following the closing~~ otherwise disposed of the applicable sale or disposition and (z) any Designated Non-Cash Consideration received in respect of such sale or disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (zh) ~~that is at that time outstanding, not in excess~~ exceed $150,000,000 during the term of ~~$40,000,000, in each case, shall be deemed to be Cash)~~this Agreement; ~~provided,~~ provided further, that ~~(i) immediately prior to and after giving effect to such sale or disposition~~if, ~~no Event of Default shall have occurred that is continuing on the date on which the agreement governing such sale or disposition is executed and (ii) the Net Proceeds of such sale~~ in connection with any sale, lease, assignment, conveyance, transfer, license, exchange or disposition (~~including~~ a “Reinvestment Sale”) in any ~~“cash boot” arising~~ calendar year, the Company or such Subsidiary re-invests, or commits to re-invest, the proceeds of such Reinvestment Sale in ~~connection with a Store Exchange~~other useful assets of the Company or any Subsidiary within twelve (12) months of the date of such sale, then the net book value of the assets sold pursuant to such Reinvestment Sale shall not be ~~applied and/or reinvested as~~ included in any determinations made under this clause (and to the extent) required by Section 2.11(b) (with any Net Proceeds of Term Loan First Lien Collateral to be held in a Term Proceeds Account (as defined in the Term Loan Agreement) pending application for such purpose if any Default then existsh); (i) to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement property; (j) dispositions of Investments in ~~joint ventures~~ Joint Ventures or Joint Venture Subsidiaries to the extent required by, or ~~made~~ pursuant to, ~~buy/sell arrangements~~ customary agreements between the joint venture parties set forth in ~~joint venture arrangements and similar~~ binding ~~arrangements~~agreements between such parties; (kj) sales, discounting or forgiveness of Accounts in the ordinary course of business or in connection with the collection or compromise thereof; (l) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and which (i) do not materially interfere with the business of the Borrowers and their Subsidiaries or (ii) relate to closed stores; (m) (i) termination of leases in the ordinary course of business, (ii) 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 in the ordinary course of business; (n) transfers of property subject to casualty, eminent domain or condemnation proceedings (including in lieu thereof); (o) licenses for the conduct of licensed departments within the Loan Parties’ stores in the ordinary course of business; (p) as long as (i) no Event of Default then exists or would arise therefrom and (ii) ABL Excess Availability on the date of the proposed transaction (calculated on a Pro Forma Basis) is equal to or greater than 10.0% of the ABL Line Cap, bulk sales or other dispositions of the Loan Parties’ Inventory outside of the ordinary course of business in connection with store closings that are conducted on an arm’s-length basis; provided that such store closures and related Inventory dispositions shall not exceed, in any Fiscal Year 20.0% of the number of the Loan Parties’ stores as of the beginning of such Fiscal Year (net of store relocations (x) occurring substantially contemporaneously with, but in no event later than ten Business Days after, the related store closure date and (y) wherein a binding lease has been entered into for a new store opening prior to the related store closure date); provided, further, that all sales of Inventory in connection with store closings in a transaction or series of related transactions shall be in accordance with liquidation agreements and with professional liquidators reasonably acceptable to the Administrative Agent and proceeds of such sales or other dispositions shall be paid to the Blocked Accounts as provided in Section 2.21; provided, further, that if the Net Proceeds of any sale or disposition of Inventory permitted pursuant to this clause (p) exceeds $20,000,000, the Borrower Agent shall be required to deliver an updated Borrowing Base Certificate to the Administrative Agent within five Business Days of such sale or disposition; (q) sales Disposition of non-core assets acquired in ~~connection with a~~ any Permitted ~~Acquisition and sales of Real Estate Assets acquired~~ Investment that the Company determines will not be used or useful in a Permitted Acquisition which, within 30 days of the date of the acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of a store; provided that (i) all Net Proceeds received in connection therewith (except to the extent constituting Term Loan First Lien Collateral) shall be paid to the Blocked Accounts as provided in Section 2.21 and (ii) no Event of Default shall have occurred and be continuing; (r) exchanges or swaps, including, without limitation, transactions covered by Section 1031 of the Code, of Real Estate Assets so long as the exchange or swap is made for fair value and on an arm’s length basis for other Real Estate Assets; provided that upon the consummation of such exchange or swap, in the case of any Loan Party, the Administrative Agent has a perfected Lien having the same priority as any Lien held on the Real Estate Assets so exchanged or swapped; (s) sales and dispositions for fair market value in an aggregate amount since the Closing Date of up to the greater of $30,000,000 and 1.00% of the Consolidated Total Assets as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 5.01; (i) licensing and cross-licensing arrangements involving any technology or other intellectual property of any Borrower or any Subsidiary in the ordinary course of business and (ii) dispositions of property in the ordinary course of business consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination of the Borrower Agent, are not material to the conduct of the business of the ~~Borrowers~~ Company and ~~the~~ its Subsidiaries~~; (u) terminations of Derivative Transactions~~; and (vk) sales ~~or dispositions~~ of ~~Capital Stock of Unrestricted Subsidiaries. To the extent any Collateral is disposed of as expressly permitted by this Section 6.08~~ accounts receivable pursuant 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, and the Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoingPermitted Supplier Financing Arrangement.

Appears in 1 contract

Samples: Credit and Guaranty Agreement (KAMAN Corp)

Fundamental Changes; Disposition of Assets. (a) The ~~Borrowers and the Subsidiary Guarantors~~ Borrower shall not, ~~nor~~ and shall ~~they permit any of their~~ cause its Subsidiaries not to, enter into any transaction of merger or consolidation, or liquidate, ~~wind~~ wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or ~~sublease (as lessor or sublessor)~~license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and capital expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except: (ai) Borrower Asset Sales; provided, that (x) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of the Borrower (or similar governing body)), (y) no less than 100% thereof shall be paid in Cash and (z) the Net Cash Proceeds thereof shall be applied as required by Section 2.11(a); (ii) disposals of obsolete, worn out or surplus property; provided, that the Net Cash Proceeds thereof shall be applied as required by Section 2.11(a); (iii) Investments made in accordance with Section 6.06; and (iv) sales, leases or licenses out of Inventory in the ordinary course of business. (b) Parent Guarantor shall not, and shall cause its Subsidiaries (excluding the Borrower and its Subsidiaries, which shall be subject to Section 6.08(a)) not to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and capital expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except: (i) any Subsidiary of Parent Guarantor may be merged ~~or consolidated or amalgamated~~ with or into any ~~Borrower~~ other Subsidiary of Parent Guarantor, or be liquidated, wound up or dissolved, or all or any part of its business, assets or property may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Parent Guarantor or any other ~~Subsidiary~~Subsidiary of Parent Guarantor; ~~provided~~ provided, that ~~(i)~~ in the case of such a merger, ~~amalgamation or consolidation with or into any Borrower,~~ such ~~Borrower~~ merger shall not reasonably be ~~the continuing or surviving Person (or, in the case of any such transaction involving both Borrowers, the Borrower Agent shall be the continuing or surviving Person) and~~ expected to have a Material Adverse Effect; (ii) ~~in the case of such a merger, amalgamation or consolidation with or into~~ any Subsidiary ~~Guarantor, either (x) such Subsidiary~~ of Parent Guarantor ~~shall be the continuing~~ may dispose of any or ~~surviving Person or (y) such transaction shall be treated as an Investment and shall comply Section 6.07; (b) sales or other dispositions among the Borrowers and their Subsidiaries~~ all of its assets (upon voluntary liquidation or otherwise)) to Parent Guarantor or any Subsidiary of the Parent Guarantor; (iii) Parent Guarantor Asset Sales in an aggregate principal amount not to exceed $25,000,000; ~~provided~~ provided, that ~~any such sales or dispositions by a Loan Party to a Person that is not a Loan Party~~ (x) immediately prior to, and after giving effect thereto, Parent Guarantor shall be (i) for fair market value (as reasonably determined by such Person) and at least 75.0% of the consideration for such sale or disposition consists of Cash or Cash Equivalents payable at the time of consummation of such sale or other disposition or (ii) treated as an Investment and shall be otherwise made in compliance with ~~Section 6.07; (i)~~ the ~~liquidation or dissolution of any Subsidiary (so long as,~~ financial covenants set forth 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, dissolution or change in form is in the best interests of the Borrowers, is not materially disadvantageous to the Lenders and the Borrowers or any Subsidiary receives any assets of such dissolved or liquidated Subsidiary; provided that in the case of a dissolution or liquidation of a Loan Party that results in a distribution of assets to a Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.07 ~~(other than Section 6.07(j)) and (ii) any merger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect~~ on a sale or disposition otherwise permitted under this Section 6.08 (other than clause (a), clause (b) or this clause (c)); provided, further, in the case of a change in the form of entity of any Subsidiary that is a Loan Party, the security interests in the Collateral shall remain in full force and effect and perfected to the same extent as prior to such change; (d) (x) sales or leases of inventory or equipment in the ordinary course of business (including on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of business; (e) (x) disposals of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower Agent, is no longer useful in its business 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 Agent reasonably determines are surplus assets; (f) sales of Cash Equivalents for the fair market value thereof; (g) dispositions, mergers, amalgamations, consolidations or conveyances that constitute Investments permitted pursuant to Section 6.07 (other than Section 6.07(j)), Permitted Liens, Restricted Payments permitted by Section 6.05(a) (other than Section 6.05(a)(ix)) and Sale-Leaseback Transactions permitted by Section 6.10; (h) sales or other dispositions of any assets of the Borrowers or any Subsidiary for fair market value; provided that with respect to sales or dispositions (other than any Store Exchange) in an aggregate amount in excess of the greater of $25,000,000 and 0.75% of the Consolidated Total Assets pro forma basis as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 5.01, at least 75.0% of the consideration for such sale or disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75.0% 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 Agent or a Subsidiary) of any Borrower or any Subsidiary Fiscal Quarter most recently ended (as ~~shown on such person’s most recent balance sheet or~~ determined in ~~the notes thereto~~accordance with Section 6.07(g)) ~~that are assumed by the transferee of any such assets~~ and for which the Borrower Agent and its Subsidiaries shall have been validly released by all 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 sale or disposition, (y) ~~any Securities received by~~ such ~~Subsidiary from such transferee that are converted by such Subsidiary into Cash or Cash Equivalents (~~Parent Guarantor Asset Sale could not reasonably be expected to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable sale or disposition and (z) any Designated Non-Cash Consideration received in respect of such sale or 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 $40,000,000, in each case, shall be deemed to be Cash); provided, further, that (i) immediately prior to and after giving effect to such sale or disposition, no Event of Default shall have occurred that is continuing on the date on which the agreement governing such sale or disposition is executed and (ii) the Net Proceeds of such sale or disposition (including any “cash boot” arising in connection with a Store Exchange) shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b) (with any Net Proceeds of Term Loan First Lien Collateral to be held in a Term Proceeds Account (as defined in the Term Loan Agreement) pending application for such purpose if any Default then exists)Material Adverse Effect; (iiv) ~~to the extent that (i) such property is exchanged for credit against the purchase price~~ disposals of ~~similar replacement property~~ obsolete, worn out or ~~(ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement~~ surplus property; (jv) ~~dispositions of~~ Investments made in ~~joint ventures to the extent required by, or made pursuant to, buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements~~accordance with Section 6.06; (kvi) ~~sales, discounting or forgiveness~~ Parent Guarantor may dispose of Accounts in the ordinary course of business or in connection with the collection or compromise thereof; (l) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and which (i) do not materially interfere with the business of the Borrowers and their Subsidiaries or (ii) relate up to closed stores; (m) (i) termination of leases in the ordinary course of business, (ii) 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 in the ordinary course of business; (n) transfers of property subject to casualty, eminent domain or condemnation proceedings (including in lieu thereof); (o) licenses for the conduct of licensed departments within the Loan Parties’ stores in the ordinary course of business; (p) as long as (i) no Event of Default then exists or would arise therefrom and (ii) ABL Excess Availability on the date of the proposed transaction (calculated on a Pro Forma Basis) is equal to or greater than 10.010% of the ~~ABL Line Cap~~economic and/or voting interest in the Equity Interests of Holdings to a Holdings Transferee, ~~bulk sales or other dispositions of the Loan Parties’ Inventory outside of the ordinary course of business in connection~~ so long as simultaneously with ~~store closings that are conducted on an arm’s-length basis; provided that~~ such store closures and related Inventory dispositions shall not exceed, in any Fiscal Year 20.0% of the number of the Loan Parties’ stores as of the beginning of such Fiscal Year (net of store relocations (x) occurring substantially contemporaneously with, but in no event later than ten Business Days afterdisposition, the ~~related store closure date and (y) wherein~~ Holdings Transferee shall grant a ~~binding lease has been entered into for a new store opening prior~~ security interest in the economic and/or voting interest in the Equity Interests of Holdings acquired thereby to the ~~related store closure date); provided, further, that~~ Collateral Agent and enter into all ~~sales of Inventory in connection with store closings in a transaction or series of related transactions shall be in accordance with liquidation agreements and with professional liquidators~~ documentation reasonably acceptable to the Administrative Agent and ~~proceeds of such sales~~ take all action as may be requested by the Administrative Agent, in connection therewith; and (vii) sales, leases or ~~other dispositions shall be paid to the Blocked Accounts as provided in Section 2.21; provided, further, that if the Net Proceeds of any sale or disposition~~ licenses out of Inventory permitted pursuant to this clause (p) exceeds $20,000,000, the Borrower Agent shall be required to deliver an updated Borrowing Base Certificate to the Administrative Agent within five Business Days of such sale or disposition; (q) sales of non-core assets acquired in connection with a Permitted Acquisition and sales of Real Estate Assets acquired in a Permitted Acquisition which, within 30 days of the date of the acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of a store; provided that (i) all Net Proceeds received in connection therewith (except to the extent constituting Term Loan First Lien Collateral) shall be paid to the Blocked Accounts as provided in Section 2.21 and (ii) no Event of Default shall have occurred and be continuing; (r) exchanges or swaps, including, without limitation, transactions covered by Section 1031 of the Code, of Real Estate Assets so long as the exchange or swap is made for fair value and on an arm’s length basis for other Real Estate Assets; provided that upon the consummation of such exchange or swap, in the case of any Loan Party, the Administrative Agent has a perfected Lien having the same priority as any Lien held on the Real Estate Assets so exchanged or swapped; (s) sales and dispositions for fair market value in an aggregate amount since the Closing Date of up to the greater of $30,000,000 and 1.00% of the Consolidated Total Assets as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 5.01; (i) licensing and cross-licensing arrangements involving any technology or other intellectual property of any Borrower or any Subsidiary in the ordinary course of ~~business and (ii) dispositions~~ business. For the avoidance of ~~property in the ordinary course of business consisting of the abandonment of intellectual property rights which~~doubt, in the reasonable good faith determination of the Borrower Agent, are not material to the conduct of the business of the Borrowers and the Subsidiaries; (u) terminations of Derivative Transactions; and (v) sales or dispositions of Capital Stock of Unrestricted Subsidiaries. To the extent any Collateral is disposed of as expressly permitted by this Section 6.08 to any Person other than a Loan Party, such Collateral Parent Guarantor shall ~~automatically be sold free and clear of the Liens created by the Loan Documents~~not, and ~~the Administrative Agent~~ shall ~~be authorized to take~~ cause its Subsidiaries not to, directly or indirectly dispose of any ~~actions deemed appropriate in order to effect the foregoing~~Parent Guarantor Material Subsidiary, Borrower, Alden or Xxxxxxx.

Appears in 1 contract

Samples: Term Loan Agreement (Globe Specialty Metals Inc)

Fundamental Changes; Disposition of Assets. ~~The Borrowers and the Subsidiary Guarantors shall not~~No Credit Party shall, nor shall ~~they~~ it permit any of ~~their~~ its Subsidiaries to, enter into any transaction of merger or ~~consolidation~~consolidation (including through a plan of division), or liquidate, ~~wind~~ wind-up or dissolve itself (or suffer any liquidation or dissolution), consummate any Asset Sale, or ~~convey, sell, lease or sublease (as lessor or sublessor), transfer or otherwise dispose~~ Dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased (as lessee), or licensed (as licensee), except, subject to Section 6.14: (a) any Subsidiary of Company may be merged ~~or consolidated or amalgamated~~ with or into ~~any Borrower~~ Company or any ~~other Subsidiary~~Guarantor, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor; ~~provided that (i)~~ provided, in the case of such a ~~merger~~merger involving Company, ~~amalgamation or consolidation with or into any Borrower, such Borrower shall be the continuing or surviving Person (or, in the case of any such transaction involving both Borrowers, the Borrower Agent~~ Company shall be the continuing or surviving Person) , and ~~(ii)~~ in the case of any other such a merger, ~~amalgamation or consolidation with or into any Subsidiary Guarantor, either (x) such Subsidiary~~ a Guarantor that is Wholly-Owned by the Company shall be the continuing or surviving ~~Person or (y) such transaction shall be treated as an Investment and shall comply Section 6.07~~Person; (b) ~~sales or~~ the granting of Liens permitted under Section 6.2, Restricted Junior Payments permitted under Section 6.5 and Investments permitted under Section 6.7 (other ~~dispositions among~~ than Section 6.7(l)); (c) Asset Sales, to the ~~Borrowers and their Subsidiaries~~ extent (~~upon voluntary liquidation or otherwise); provided that any~~ 1) the proceeds received for such ~~sales or dispositions by a Loan Party to a Person that is not a Loan Party~~ assets shall be ~~(i) for~~ in an amount at least equal to the fair market value thereof (determined in good faith by the Company), (2) no less than 75% of the total consideration thereof shall consist of Cash paid upon or after the closing of each applicable Asset Sale (so long as ~~reasonably determined by such Person) and~~ at least ~~75.0~~75% of the consideration ~~for~~ paid upon such ~~sale or disposition consists~~ closing shall consist of Cash or Cash Equivalents payable at the time of consummation of such sale or other disposition or (ii) treated as an Investment and shall be otherwise made in compliance with Section 6.07; (i) the liquidation or dissolution of any 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, dissolution or change in form is in the best interests of the Borrowers, is not materially disadvantageous to the Lenders and the Borrowers or any Subsidiary receives any assets of such dissolved or liquidated Subsidiary; provided that in the case of a dissolution or liquidation of a Loan Party that results in a distribution of assets to a Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.07 (other than Section 6.07(j)Cash) and (ii3) ~~any merger, amalgamation, dissolution, liquidation or consolidation,~~ the purpose of which is to effect a sale or disposition otherwise permitted under this Section 6.08 (other than clause (a), clause (b) or this clause (c)); provided, further, in the case of a change in the form of entity of any Subsidiary that is a Loan Party, the security interests in the Collateral Net Asset Sale Proceeds thereof shall ~~remain in full force and effect and perfected~~ be applied to the ~~same~~ extent ~~as prior to such change~~required by Section 2.13(a); (d) any sale, lease, license, transfer or other disposition of property to any Credit Party; (xe) ~~sales~~ licenses, sublicenses, leases or ~~leases of inventory or equipment~~ subleases (other than relating to Intellectual Property, in each case) granted to third parties in the ordinary course of business and not interfering with the business of the Company and its Affiliates; (f) the (i) exclusive and non-exclusive licensing of Intellectual Property (other than Material Intellectual Property), (ii) exclusive and non-exclusive licensing of foreign rights to Oncology Indications of selinexor, (iii) exclusive and non-exclusive licensing of non-Oncology Indications of selinexor, (iv) non-exclusive and non-commercial licensing of Material Intellectual Property for bona fide operating business purposes (as reasonably determined by the Company in good faith), and (v) exclusive licensing of Material Intellectual Property other than Intellectual Property with respect to selinexor (including ~~on an intercompany basis~~any formulations, re-formulations, polymorphs, crystal forms, solvates, amorphous forms, methods of treatment, and methods of manufacture), in each case, so long as the Net Asset Sale Proceeds thereof shall be applied to the extent required by Section 2.13(a); (g) any abandonment, cancellation, non-renewal or discontinuance of use or maintenance of Intellectual Property (or rights relating thereto) (other than Material Intellectual Property) of any Credit Party that the Company reasonably determines in good faith is no longer desirable in the conduct of its business or is no longer economically practicable to maintain; (h) any Involuntary Disposition or any sale, lease, license or other disposition of property (other than, for the avoidance of doubt, Intellectual Property) in settlement of, or to make payment in satisfaction of, any property or casualty insurance; (i) inventory sold to unaffiliated customers and ~~(y)~~ dispositions consisting of the ~~leasing~~ sale, transfer, discount, assignment or ~~subleasing~~ other disposition of ~~real property~~ unpaid and overdue accounts receivable in connection with the collection, compromise or settlement thereof in the ordinary course of ~~business~~business and not as part of a financing transaction; (ej) ~~(x) disposals of surplus~~the sale, ~~obsolete~~transfer, ~~used or worn out property~~ issuance or other ~~property that, in the reasonable judgment~~ disposition of a de minimis number of shares of the ~~Borrower Agent, is no longer useful~~ Capital Stock of a Foreign Subsidiary of a Credit Party in ~~its business and (y) any assets acquired in connection with~~ order to qualify members of the ~~acquisition of another Person or a division or line of business~~ governing body of such ~~Person which the Borrower Agent reasonably determines are surplus assets~~Subsidiary if required by Requirements of Law; (fk) ~~sales~~ dispositions of ~~Cash Equivalents for the fair market value thereof; (g) dispositions, mergers, amalgamations, consolidations or conveyances that constitute Investments permitted pursuant to Section 6.07~~ property (other than Section 6.07(j)), Permitted Liens, Restricted Payments permitted by Section 6.05(a) (other than Section 6.05(a)(ix)) and Sale-Leaseback Transactions permitted by Section 6.10; (h) sales or other dispositions of any assets of the Borrowers or any Subsidiary for fair market value; provided that with respect to sales or dispositions (other than any Store Exchange) in an aggregate amount in excess of the greater of $25,000,000 and 0.75% of the Consolidated Total Assets as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 5.01, at least 75.0% of the consideration for such sale or disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75.0% 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 Agent or a Subsidiary) of any Borrower or any Subsidiary (as shown on such person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets and for which the Borrower Agent and its Subsidiaries shall have been validly released by all 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 sale or disposition, (y) any Securities received by such Subsidiary from such transferee that are converted by such Subsidiary into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable sale or disposition and (z) any Designated Non-Cash Consideration received in respect of such sale or 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 $40,000,000, in each case, shall be deemed to be Cash); provided, further, that (i) immediately prior to and after giving effect to such sale or disposition, no Event of Default shall have occurred that is continuing on the date on which the agreement governing such sale or disposition is executed and (ii) the Net Proceeds of such sale or disposition (including any “cash boot” arising in connection with a Store Exchange) shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b) (with any Net Proceeds of Term Loan First Lien Collateral to be held in a Term Proceeds Account (as defined in the Term Loan Agreement) pending application for such purpose if any Default then exists); (iMaterial Intellectual Property) to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement ~~property~~ property, or other assets of comparable or greater value or usefulness to the business or (ii) an amount equal to the net proceeds of such disposition are promptly applied to the purchase price of such replacement property; (jl) dispositions of Investments in ~~joint ventures~~ Joint Ventures to the extent required by, or made pursuant ~~to,~~ to customary buy/sell arrangements between the ~~joint venture~~ Joint Venture parties set forth ~~in joint venture arrangements~~ in, Joint Venture agreements and similar binding arrangements; (k) sales, discounting or forgiveness of Accounts in the ordinary course of business or in connection with the collection or compromise thereof; (l) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and which (i) do not materially interfere with the business of the Borrowers and their Subsidiaries or (ii) relate to closed stores;; and (m) disposals of used, surplus, obsolete or worn-out property (iother than Intellectual Property) termination of leases in the ordinary course of business, (ii) 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 in the ordinary course of business; (n) transfers of property subject to casualty, eminent domain or condemnation proceedings (including in lieu thereof); (o) licenses for the conduct of licensed departments within the Loan Parties’ stores in the ordinary course of business; (p) as long as (i) no Event of Default then exists or would arise therefrom and (ii) ABL Excess Availability on the date of the proposed transaction (calculated on a Pro Forma Basis) is equal to or greater than 10.0% of the ABL Line Cap, bulk sales or other dispositions of the Loan Parties’ Inventory outside of the ordinary course of business in connection with store closings that are conducted on an arm’s-length basis; provided that such store closures and related Inventory dispositions shall not exceed, in any Fiscal Year 20.0% of the number of the Loan Parties’ stores as of the beginning of such Fiscal Year (net of store relocations (x) occurring substantially contemporaneously with, but in no event later than ten Business Days after, the related store closure date and (y) wherein a binding lease has been entered into for a new store opening prior to the related store closure date); provided, further, that all sales of Inventory in connection with store closings in a transaction or series of related transactions shall be in accordance with liquidation agreements and with professional liquidators reasonably acceptable to the Administrative Agent and proceeds of such sales or other dispositions shall be paid to the Blocked Accounts as provided in Section 2.21; provided, further, that if the Net Proceeds of any sale or disposition of Inventory permitted pursuant to this clause (p) exceeds $20,000,000, the Borrower Agent shall be required to deliver an updated Borrowing Base Certificate to the Administrative Agent within five Business Days of such sale or disposition; (q) sales of non-core assets acquired in connection with a Permitted Acquisition and sales of Real Estate Assets acquired in a Permitted Acquisition which, within 30 days of the date of the acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of a store; provided that (i) all Net Proceeds received in connection therewith (except to the extent constituting Term Loan First Lien Collateral) shall be paid to the Blocked Accounts as provided in Section 2.21 and (ii) no Event of Default shall have occurred and be continuing; (r) exchanges or swaps, including, without limitation, transactions covered by Section 1031 of the Code, of Real Estate Assets so long as the exchange or swap is made for fair value and on an arm’s length basis for other Real Estate Assets; provided that upon the consummation of such exchange or swap, in the case of any Loan Party, the Administrative Agent has a perfected Lien having the same priority as any Lien held on the Real Estate Assets so exchanged or swapped; (s) sales and dispositions for fair market value in an aggregate amount since the Closing Date of up to the greater of $30,000,000 and 1.00% of the Consolidated Total Assets as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 5.01; (i) licensing and cross-licensing arrangements involving any technology or other intellectual property of any Borrower or any Subsidiary in the ordinary course of business and (ii) dispositions of property in the ordinary course of business consisting of the abandonment of intellectual property rights whichis, in the reasonable ~~good faith determination~~ judgment of ~~the Borrower Agent~~such Credit Party, ~~are not~~ no longer economically practicable to maintain or no longer used or useful in any material to respect in the conduct of the business of the ~~Borrowers~~ Company and its Subsidiaries taken as a whole. Notwithstanding anything to the ~~Subsidiaries;~~ contrary contained in the Credit Documents, no Credit Party shall, nor shall it permit any of its Subsidiaries to, consummate any “Division” (~~u) terminations of Derivative Transactions; and (v) sales or dispositions of Capital Stock of Unrestricted Subsidiaries. To the extent any Collateral is disposed of~~ as ~~expressly permitted by this~~ defined in Section ~~6.08 to any Person other than a Loan Party, such Collateral shall automatically be sold free and clear~~ 18-217 of the ~~Liens created by the Loan Documents, and the Administrative Agent shall~~ Delaware Limited Liability Company Act) or similar organizational change that may hereafter be ~~authorized to take~~ permitted under any ~~actions deemed appropriate in order to effect the foregoing~~applicable statute.

Appears in 1 contract

Samples: Credit and Guaranty Agreement (Karyopharm Therapeutics Inc.)

Fundamental Changes; Disposition of Assets. ~~The Borrowers and the Subsidiary Guarantors~~ No Credit Party shall ~~not, nor shall they permit any of their Subsidiaries to,~~ enter into any transaction of merger or ~~consolidation~~consolidation (other than a Permitted Acquisition), or liquidate, ~~wind~~ wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or ~~sublease~~ sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, except: (a) any ~~Subsidiary~~ Credit Party may be merged ~~or consolidated or amalgamated~~ with or into any ~~Borrower~~ other Credit Party, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any other ~~Subsidiary~~Credit Party; ~~provided that (i)~~ provided, in the case of such a ~~merger~~merger with the Parent, ~~amalgamation or consolidation with or into any Borrower, such Borrower~~ the Parent shall be the continuing or surviving Person ~~(or,~~ and in the case of such a merger with any ~~such transaction involving both Borrowers~~Guarantor Subsidiary, a Wholly Owned Subsidiary of the ~~Borrower Agent~~ Borrowers shall be the continuing or surviving Person) and (ii) in the case of such a merger, amalgamation or consolidation with or into any Subsidiary Guarantor, either (x) such Subsidiary Guarantor shall be the continuing or surviving Person or (y) such transaction shall be treated as an Investment and shall comply Section 6.07; (b) sales or other dispositions ~~among the Borrowers and their Subsidiaries (upon voluntary liquidation or otherwise); provided~~ of assets that ~~any such sales or dispositions by a Loan Party to a Person that is~~ do not a Loan Party shall be (i) for fair market value (as reasonably determined by such Person) and at least 75.0% of the consideration for such sale or disposition consists of Cash or Cash Equivalents payable at the time of consummation of such sale or other disposition or (ii) treated as an Investment and shall be otherwise made in compliance with Section 6.07constitute Asset Sales; (ic) licenses to or from other Persons of Intellectual Property by the liquidation or dissolution of any 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, dissolution or change in form is in the best interests of the Borrowers, is not materially disadvantageous to the Lenders and the Borrowers Parent or any ~~Subsidiary receives any assets of such dissolved or liquidated~~ Subsidiary; provided that in the case of a dissolution or liquidation of a Loan Party that results in a distribution of assets to a Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.07 (other than Section 6.07(j)) and (ii) any merger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect a sale or disposition otherwise permitted under this Section 6.08 (other than clause (a), clause (b) or this clause (c)); provided, further, in the case of a change in the form of entity of any Subsidiary that is a Loan Party, the security interests in the Collateral shall remain in full force and effect and perfected to the same extent as prior to such change; (d) (x) sales or leases of inventory or equipment in the ordinary course of business (including on an intercompany basis) and (y) the leasing or subleasing of real property in the ordinary course of businessIntentionally Omitted; (e) (x) disposals of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower Agent, is no longer useful in its business 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 Agent reasonably determines are surplus assetsIntentionally Omitted; (f) sales of ~~Cash Equivalents for~~ the ~~fair market value thereof~~Capital Stock of Unrestricted Subsidiaries; (g) ~~dispositions~~Asset Sales, ~~mergers, amalgamations, consolidations or conveyances that constitute Investments permitted pursuant~~ subject to the requirements of Section ~~6.07 (other than Section 6.07(j)), Permitted Liens, Restricted Payments permitted by Section 6.05(a) (other than Section 6.05(a)(ix)) and Sale-Leaseback Transactions permitted by Section 6.10~~2.12; (h) ~~sales~~ Finance may enter into a merger or other ~~dispositions of~~ combination with any ~~assets~~ other Person only if, not less than thirty days prior to any such proposed merger or business combination, the Parent shall have provided the Lenders with information (verified, if so requested by the Lenders, by an independent third-party consultant (whether a Big Four accounting firm or other consultant with CLEC industry expertise, in either event satisfactory to the Lenders) demonstrating that each of the ~~Borrowers~~ following criteria for the merger partner or other Person entering into a combination with Finance (together with its Subsidiaries, if any, and any ~~Subsidiary~~ other Persons consolidated with such Person, the "Merger Partner") is met: Assuming that the Total Debt of the Parent and its Subsidiaries on a consolidated basis, over the Total Debt of the Merger Partner, expressed as a fraction, is X, then each of the following shall be true: (i) the revenues of the Merger Partner for ~~fair market value~~the most recent trailing four quarter period for which financial statements are available, multiplied by X, are no less than the revenues of the Parent and its Subsidiaries over such period; (ii) EBITDA of the Merger Partner for the trailing four quarter period for which financial statements are available, multiplied by X, is no less than or, if negative, that the loss is no greater than, EBITDA for the Parent and its Subsidiaries for such period; (iii) that at the time of the proposed merger, the Merger Partner's Access Lines, multiplied by X, shall equal or exceed the Access Lines of the Parent and Subsidiaries; (iv) the Merger Partner's property, plant and equipment, as shown on its most recent balance sheet, multiplied by X, is not less than the property, plant and equipment of the Parent and its Subsidiaries, as shown on the most recent balance sheet of the Parent and its Subsidiaries; ~~provided~~ and (v) the terms and conditions of the Total Debt of the Merger Partner shall be on terms and conditions no more favorable to the holders thereof than the terms and conditions of the Loans. In the event that each of the foregoing criteria is satisfied, the Lenders shall have ten days from receipt of all such information and any supporting information regarding the merger requested by either Lender in which to agree to give their consent, such consent to be delivered in writing and not to be unreasonably withheld, and the Lenders further agree to negotiate reasonably and in good faith with the holders of the Total Debt of the Merger Partner to arrive at appropriate and mutually satisfactory intercreditor arrangements. In the event the Lenders fail to give such written consent within such ten-day period, Finance may not enter into such merger. For purposes of this Section, "Total Debt" shall mean all Indebtedness of such Person; provided, however, that with respect to sales or dispositions (other than any Store Exchange) in an aggregate amount in excess of the greater of $25,000,000 and 0.75% of the Consolidated Total Assets as of the last day of the last Test Period for Indebtedness which ~~financial statements have been delivered pursuant to Section 5.01~~by its terms accrues but does not pay interest, ~~at least 75.0% of the consideration for such sale or disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75.0% 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 Agent or a Subsidiary) of any Borrower or any Subsidiary (as shown on such person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets and for which the Borrower Agent and its Subsidiaries shall have been validly released by all 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 sale or disposition, (y) any Securities received by such Subsidiary from such transferee that are converted by such Subsidiary into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable sale or disposition and (z) any Designated Non-Cash Consideration received in respect of such sale or 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 $40,000,000, in each case, shall be deemed to be ~~Cash)~~the principal amount plus any accrued or accreted interest; ~~provided, further, that~~ and (i) ~~immediately~~ The Parent or the Holding Company may enter into a merger with any Person only if, not less than thirty (30) days prior to any such proposed merger, the Parent shall have provided the Administrative Agent and the Lenders with a revised Financial Plan demonstrating that its business plan remains fully-financed, and shall certify that, both before and after giving effect to any such ~~sale or disposition~~merger, no Event of Default shall have occurred that is continuing on the date on which the agreement governing such sale or disposition is executed and (ii) the Net Proceeds of such sale or disposition (including any “cash boot” arising in connection with a Store Exchange) shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b) (with any Net Proceeds of Term Loan First Lien Collateral to be held in a Term Proceeds Account (as defined in the Term Loan Agreement) pending application for such purpose if any Default then exists); (i) to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of 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, buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (k) sales, discounting or forgiveness of Accounts in the ordinary course of business or in connection with the collection or compromise thereof; (l) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and which (i) do not materially interfere with the business of the Borrowers and their Subsidiaries or (ii) relate to closed stores; (m) (i) termination of leases in the ordinary course of business, (ii) 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 in the ordinary course of business; (n) transfers of property subject to casualty, eminent domain or condemnation proceedings (including in lieu thereof); (o) licenses for the conduct of licensed departments within the Loan Parties’ stores in the ordinary course of business; (p) as long as (i) no Event of Default then exists or would arise therefrom and (ii) ABL Excess Availability on the date of the proposed transaction (calculated on a Pro Forma Basis) is equal to or greater than 10.0% of the ABL Line Cap, bulk sales or other dispositions of the Loan Parties’ Inventory outside of the ordinary course of business in connection with store closings that are conducted on an arm’s-length basis; provided that such store closures and related Inventory dispositions shall not exceed, in any Fiscal Year 20.0% of the number of the Loan Parties’ stores as of the beginning of such Fiscal Year (net of store relocations (x) occurring substantially contemporaneously with, but in no event later than ten Business Days after, the related store closure date and (y) wherein a binding lease has been entered into for a new store opening prior be caused thereby. Notwithstanding anything to the ~~related store closure date); provided~~contrary set forth in this Section 6.7, further, that all sales of Inventory in connection with store closings in a transaction or series of related transactions shall be in accordance with liquidation agreements and with professional liquidators reasonably acceptable to upon the ~~Administrative Agent and proceeds of such sales or other dispositions shall be paid to the Blocked Accounts as provided in Section 2.21; provided, further, that if the Net Proceeds~~ merger of any ~~sale or disposition of Inventory~~ Credit Party with any other Person permitted ~~pursuant to~~ under this ~~clause (p) exceeds $20,000,000~~Agreement, the Borrower Agent shall be required to deliver an updated Borrowing Base Certificate to the Administrative Agent within five Business Days of such sale or disposition; (q) sales of non-core assets acquired in connection with a Permitted Acquisition and sales of Real Estate Assets acquired in a Permitted Acquisition which, within 30 days of the date of the acquisition, are designated in writing to the Administrative Agent for as being held for sale and not for the continued operation of a store; provided that (i) all Net Proceeds received in connection therewith (except to the extent constituting Term Loan First Lien Collateral) shall be paid to the Blocked Accounts as provided in Section 2.21 and (ii) no Event of Default shall have occurred and be continuing; (r) exchanges or swaps, including, without limitation, transactions covered by Section 1031 of the Code, of Real Estate Assets so long as the ~~exchange or swap is made for fair value and on an arm’s length basis for other Real Estate Assets; provided that upon the consummation of such exchange or swap, in the case of any Loan Party~~Obligations are outstanding, the Administrative ~~Agent has a~~ Agent's First Priority perfected security interest and Lien ~~having~~ in the ~~same priority as any Lien held on the Real Estate Assets so exchanged or swapped; (s) sales and dispositions for fair market value in an aggregate amount since the Closing Date~~ Collateral of up to the greater of $30,000,000 and 1.00% of the Consolidated Total Assets as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 5.01; (i) licensing and cross-licensing arrangements involving any technology or other intellectual property such Credit Party shall be continued without impairment of any Borrower or any Subsidiary in the ordinary course of business and (ii) dispositions of property in the ordinary course of business consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination of the Borrower Agent, are not material to the conduct of the business of the Borrowers and the Subsidiaries; (u) terminations of Derivative Transactions; and (v) sales or dispositions of Capital Stock of Unrestricted Subsidiaries. To the extent any Collateral is disposed of as expressly permitted by this Section 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, and the Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoingkind.

Appears in 1 contract

Samples: Credit and Guaranty Agreement (Nuvox Inc /De/)

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