Fundamental Changes; Disposition of Assets. No Credit Party shall, nor shall it permit any of its Subsidiaries (other than Non-Recourse Subsidiaries) to, enter into any transaction of merger or consolidation (other than in connection with an Investment permitted pursuant to Section 6.6), or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into any other Person, or convey, sell, lease or license, exchange, transfer, assign, pledge or otherwise dispose of 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 with or into Borrower or any 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, in the case of such a merger, Borrower or such Guarantor Subsidiary, as applicable, shall be the continuing or surviving Person; (b) [Reserved]; (c) sales or other dispositions of assets that do not constitute Asset Sales; (d) Asset Sales; provided that (1) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the manager of Holdings), (2) no less than 75% of 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 Default shall have occurred and be continuing or would result therefrom; provided, further, that, for purposes of this clause (d), (i) any consideration in the 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 in an amount equal to the amount of such Cash consideration, (ii) any liabilities (as shown on 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 Obligations, that are assumed by the transferee with respect to the such Asset Sale and for which Holdings and its Subsidiaries shall have been validly released by all applicable creditors in writing shall be deemed to be Cash consideration in an amount equal to the liabilities so assumed and (iii) any Designated Non-Cash Consideration received by Holdings or any of its Subsidiaries in respect of such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding, not in excess of the greater of (x) $50,000,000 and (y) 1.50% of Consolidated Total Assets as of the last day of the 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 subsequent changes in value, shall be deemed to be Cash consideration; (e) disposals of obsolete, worn out or surplus property; (f) the lease, as lessor or sublessor, or license (other than any long-term exclusive license), as licensor or sublicensor, of real or personal property or Intellectual Property in the ordinary course of business and not interfering in any respect with the ordinary conduct of or materially detracting from the business of Holdings or any Subsidiary; (g) internal corporate reorganizations of the Subsidiaries of any Project Holdco; (h) the issuance or sale by Holdings of its Equity Interests; (i) [reserved];
Appears in 1 contract
Samples: Credit and Guaranty Agreement (TerraForm Power, Inc.)
Fundamental Changes; Disposition of Assets. No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries (other than Non-Recourse Subsidiaries) to, enter into any transaction of merger or consolidation (other than in connection with an Investment permitted pursuant to Section 6.6)consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into any other Person), or convey, sell, lease or license, exchange, transfer, assign, pledge transfer or otherwise dispose of or encumberof, 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 licensed, except:
(a) (i) any Restricted Subsidiary of Borrower Parent (other than a Pledged HoldcoBorrower) may be merged with or into Borrower or any Guarantor SubsidiarySubsidiary 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 Borrower or any Guarantor SubsidiarySubsidiary Guarantor; provided thatprovided, in the case of such a mergerBorrower, Borrower or such Guarantor SubsidiaryGuarantor, as applicable, shall be the continuing or surviving Person, or the transferee of the relevant business, property or assets, as the case may be and (ii) any Non-U.S. Subsidiary of Parent may be merged with or into any wholly owned Non-U.S. Subsidiary of Parent, 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 wholly owned Non-U.S. Subsidiary of Parent; provided, a wholly owned Non-U.S. Subsidiary of Parent shall be the continuing, surviving or succeeding Person, or the transferee of the relevant business, property or assets, as the case may be;
(b) [Reserved];
(c) sales or other dispositions of assets that do not constitute Asset Sales;
(dc) Asset Sales; provided that (1i) the consideration received for such assets (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise in connection with such Asset Sales) under this clause (c) shall be in an amount at least equal to the fair market value thereof (determined in good faith by the manager board of Holdingsdirectors of Parent (or similar governing body)), (2ii) no less than 75% of such consideration thereof shall be paid in Cash or Cash Equivalents, (iii) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.11(a), and (3iv) immediately prior to any such Asset Sale and immediately after giving effect thereto, no Event of Default shall have occurred and be continuing or would result therefromat the time of such Asset Sale; provided, further, thatthat the provisions of clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $25,000,000; provided, further, that for purposes of this clause (dii), (i) any consideration in each of the form of Cash Equivalents that are disposed of for Cash within 30 Business Days after such Asset Sale following shall be deemed to be Cash consideration in an amount equal to Cash: (A) the amount of such Cash consideration, (ii) any liabilities (as shown on the Holding’s or such Restricted Subsidiary’s most recent balance sheet of Holdings and its Subsidiariesor in the notes thereto) of Holdings or any of its Subsidiaries, 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 or are otherwise cancelled in connection with respect such transaction, (B) any notes or other obligations or other securities or assets received by Parent or such Restricted Subsidiary from the transferee that are converted by Parent or such Restricted Subsidiary into cash within 180 days after receipt thereof (to the such Asset Sale and for which Holdings and its Subsidiaries shall have been validly released by all applicable creditors in writing shall be deemed to be extent of the Cash consideration in an amount equal to the liabilities so assumed received) and (iiiC) any Designated Non-Cash Consideration received by Holdings Parent or any of its Restricted Subsidiaries in respect of such Asset Sale having an aggregate fair market valuevalue (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstandingC), not in excess of to exceed the greater of (x) $50,000,000 and (y) 1.5075,000,000.00 or 2.50% of Consolidated Total Assets Assets, as of the last day of the most recently ended Fiscal Quarter most recently endedfor which financial statements have been delivered pursuant to Section 5.1(a) or (b), at as applicable in the time of aggregate for all such designations during the receipt of such Designated Non-Cash Consideration, term this Agreement (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value);
(d) disposals of used, shall be deemed obsolete, damaged, worn out or surplus equipment or property, including any property that is no longer useful in the conduct of the business or otherwise economically impracticable to be Cash considerationmaintain, whether now owned or hereafter acquired, in the ordinary course of business (other than Intellectual Property);
(e) disposals of obsoleteall or substantially all of the assets of any Restricted Subsidiary to the Borrower or another Restricted Subsidiary, worn out or surplus property;provided that if the transferor is a Guarantor, the transferee must also be a Guarantor.
(f) to the extent constituting an Asset Sale and/or a “Fundamental Change”, Indebtedness incurred in accordance with Section 6.1, Liens granted in accordance with Section 6.2, Restricted Junior Payments made in accordance with Section 6.4 and Investments made in accordance with Section 6.6;
(g) leases or licenses (including sublicenses and covenants not to xxx) of Intellectual Property, in the ordinary course of business;
(h) the settlement or write-off of accounts receivable or sale of overdue accounts receivable (including any discount or forgiveness thereof) for collection in the ordinary course of business;
(i) the disposition of Cash or Cash Equivalents in the ordinary course of business;
(j) the termination of a lease due to the default of the landlord thereunder or pursuant to any right of termination of the tenant under the lease;
(k) to the extent the Borrower or any of its Restricted Subsidiaries determines in its reasonable business judgment is desirable in the conduct of its business, as lessor dispositions of Intellectual Property, including discontinuing the use or sublessormaintenance of, failing to pursue, or license otherwise abandoning, allowing to lapse, terminating or putting into the public domain, any Intellectual Property;
(other than any long-term exclusive license), as licensor or sublicensor, of real or personal property or Intellectual Property l) dispositions in the ordinary course of business and consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination of Borrower, are not interfering in any respect with material to the ordinary conduct of or materially detracting from the business of Holdings or any SubsidiaryBorrower and its Restricted Subsidiaries, taken as a whole;
(gm) internal corporate reorganizations dispositions of Investments in joint ventures or any Restricted Subsidiaries that are not wholly owned to the Subsidiaries of any Project Holdcoextent required by, or made pursuant to, buy/sell arrangements between joint venture or similar parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(hn) transfers of condemned property as a result of the issuance exercise of “eminent domain” or sale other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by Holdings deed in lieu of its Equity Interestscondemnation or otherwise), and transfers of property that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(o) the disposition of one or more plants located in the United Kingdom with a fair market value of approximately $10,000,000;
(p) any disposition made in accordance with Section 6.16 of the Stock Purchase Agreement; and
(q) a sale or other disposition of Accounts in connection with a Supplier Financing Transaction so long as at the time of such sale or other disposition, no Default or Event of Default exists or would result therefrom after giving pro forma effect to such sale or disposition. Notwithstanding the foregoing, the following transactions shall be permitted: (i) [reserved];the liquidation or dissolution of any Restricted Subsidiary (other than Borrower) if Borrower determines in good faith that such liquidation or dissolution is in the best interests of Borrower, is not materially disadvantageous to the Lenders and Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Subsidiary and (ii) any merger, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Asset Sale otherwise permitted under this Section 6.7 or (B) any Investment permitted under Section 6.6. Notwithstanding the foregoing, neither Parent nor Borrower will sell, transfer, lease or otherwise dispose of, or permit the sale, transfer, lease or other disposition of (in one transaction or in a series of transactions, including by merger of a Subsidiary), all or substantially all the assets (including Equity Interests in Subsidiaries) of Parent and its Subsidiaries or Borrower and its Restricted Subsidiaries considered on a consolidated basis, whether now owned or hereafter acquired, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing, any Person (other than Parent or Borrower) may (a) merge into Parent in a transaction in which Parent is the surviving corporation or (b) merge into Borrower in a transaction in which Borrower is the surviving corporation.
Appears in 1 contract
Samples: Credit and Guarantee Agreement (Kraton Performance Polymers, Inc.)
Fundamental Changes; Disposition of Assets. No Credit Party shall, nor shall it permit any of its Subsidiaries (other than Non-Recourse Subsidiaries) to, enter into any transaction of merger or consolidation (other than in connection with an Investment permitted pursuant to Section 6.6), or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into any other Person, or convey, sell, lease or license, exchange, transfer, assign, pledge or otherwise dispose of 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 with or into Borrower or any 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, in the case of such a merger, Borrower or such Guarantor Subsidiary, as applicable, shall be the continuing or surviving Person;
(b) [Reserved];
(c) sales or other dispositions of assets that do not constitute Asset Sales;
(d) Asset Sales; provided that (1) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the manager of Holdings), (2) no less than 75% of 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 Default shall have occurred and be continuing or would result therefrom; provided, further, that, for purposes of this clause (d), (i) any consideration in the 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 in an amount equal to the amount of such Cash consideration, (ii) any liabilities (as shown on 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 Obligations, that are assumed by the transferee with respect to the such Asset Sale and for which Holdings and its Subsidiaries shall have been validly released by all applicable creditors in writing shall be deemed to be Cash consideration in an amount equal to the liabilities so assumed and (iii) any Designated Non-Cash Consideration received by Holdings or any of its Subsidiaries in respect of such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding, not in excess of the greater of (x) $50,000,000 and (y) 1.50% of Consolidated Total Assets as of the last day of the 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 subsequent changes in value, shall be deemed to be Cash consideration;
(e) disposals of obsolete, worn out or surplus property;
(f) the lease, as lessor or sublessor, or license (other than any long-term exclusive license), as licensor or sublicensor, of real or personal property or Intellectual Property in the ordinary course of business and not interfering in any respect with the ordinary conduct of or materially detracting from the business of Holdings or any Subsidiary;
(g) internal corporate reorganizations of 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
(l) the issuance or sale by Borrower or any of its Subsidiaries of Equity Interests ratably to their respective equity holders.
Appears in 1 contract
Samples: Term Loan and Guaranty Agreement (TerraForm Power, Inc.)
Fundamental Changes; Disposition of Assets. No Credit Party shallThe Lessee shall not, nor and shall it not permit any of its Subsidiaries (other than Non-Recourse Subsidiaries) to, alter the corporate, capital or legal structure of the Lessee or any of its Subsidiaries if any such alteration could reasonably be expected to have an Objective Material Adverse Effect or a Material Adverse Effect, or enter into any transaction of merger or consolidation (other than in connection with an Investment permitted pursuant to Section 6.6)consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into any other Person), or convey, sell, lease or licensesub-lease (as lessor or sublessor), exchange, transfer, assign, pledge transfer or otherwise dispose of or encumberof, 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 property or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangibleassets, whether now owned or hereafter acquired, leased or licensed acquire by purchase or otherwise all or substantially all 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 of any Person, except:
(aA) any Any Domestic Subsidiary of Borrower (other than a Pledged Holdco) the Lessee may be merged with or into Borrower Lessee or any Guarantor SubsidiaryWholly-Owned Domestic Subsidiary or any other Person that as part of such transaction becomes a Subsidiary of the Lessee, 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 Lessee or any Guarantor Wholly-Owned Domestic Subsidiary; provided thatprovided, in the case of such a merger, Borrower the Lessee or, in a transaction not involving the Lessee, such Wholly-Owned Domestic Subsidiary or such Guarantor Subsidiary, as applicablea newly formed or acquired Domestic Subsidiary of the Lessee, shall be the continuing or surviving Person;
(bB) [Reserved]Any Foreign Subsidiary of the Lessee may be merged with or into the Lessee or any Foreign Subsidiary or Domestic Subsidiary or any other Person that as part of such transaction becomes a Subsidiary of the Lessee, 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 the Lessee or any Foreign Subsidiary or Domestic Subsidiary; provided, in the case of such a merger, the Lessee or, in a transaction not involving the Lessee, such Foreign Subsidiary or Domestic Subsidiary (or a newly formed or acquired Foreign Subsidiary or Domestic Subsidiary of the Lessee), shall be the continuing or surviving corporation;
(cC) sales Sales or other dispositions of assets that do Investments permitted by subparts (A) and (C) of Section 10.1(b)(iv) for not constitute Asset Salesless than fair value;
(dD) Asset Sales; provided that (1) the consideration received Sales of surplus, damaged, worn or obsolete equipment or inventory for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the manager of Holdings), (2) no not less than 75% of 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 Default shall have occurred and be continuing or would result therefrom; provided, further, that, for purposes of this clause (d), (i) any consideration in the 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 in an amount equal to the amount of such Cash consideration, (ii) any liabilities (as shown on 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 Obligations, that are assumed by the transferee with respect to the such Asset Sale and for which Holdings and its Subsidiaries shall have been validly released by all applicable creditors in writing shall be deemed to be Cash consideration in an amount equal to the liabilities so assumed and (iii) any Designated Non-Cash Consideration received by Holdings or any of its Subsidiaries in respect of such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding, not in excess of the greater of (x) $50,000,000 and (y) 1.50% of Consolidated Total Assets as of the last day of the 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 subsequent changes in value, shall be deemed to be Cash consideration;
(eE) disposals Sales or assignments of obsolete, worn out or surplus propertydefaulted receivables to a collection agency in the ordinary course of business;
(fF) Licenses to other Persons of intellectual property by the lease, as lessor Lessee or sublessor, or license (other than any long-term exclusive license), as licensor or sublicensor, of real or personal property or Intellectual Property Subsidiary thereof in the ordinary course of business and not interfering provided that, in any respect with each case, the ordinary conduct terms of or materially detracting from the business of Holdings or any Subsidiarytransaction are terms which then would prevail in the market for similar transactions between unaffiliated parties dealing at arm's length;
(gG) internal corporate reorganizations Sales or other dispositions of assets and property by the Lessee to any of the Lessee's Subsidiaries or by any of the Lessee's Subsidiaries to the Lessee or any of its other Subsidiaries, provided that the terms of any Project Holdcosuch sales or other dispositions by or to the Lessee are terms which are no less favorable to the Lessee than would prevail in the market for similar transactions between unaffiliated parties dealing at arm's length;
(hH) the issuance or sale by Holdings of its Equity InterestsTransactions permitted under Section 10.1(b)(iv);
(iI) [reserved]Sales of accounts receivable of the Lessee and its Subsidiaries, provided that (A) each such sale is (1) for not less than fair market value and (2) for cash, and (B) the aggregate book value of all such accounts receivable so sold in any consecutive four Fiscal Quarter period does not exceed ten percent (10%) of the consolidated total accounts receivable of the Lessee and its Subsidiaries on the last day immediately preceding such four Fiscal Quarter period;
(J) Other sales, leases, transfers and disposal of assets and property for not less than fair market value, provided that the aggregate book value of all such assets and property so sold, leased, transferred or otherwise disposed of in any consecutive four Fiscal Quarter period does not exceed ten percent (10%) of the Consolidated Assets of the Lessee and its Subsidiaries on the last day immediately preceding such four Fiscal Quarter period; and
(K) subleases by the Lessee or any of its Subsidiaries of excess leased space; provided, however, that the foregoing exceptions shall not be construed to permit any sales, leases, subleases, transfers or disposals of any of the Property, except as expressly permitted by the Operative Documents.
Appears in 1 contract
Samples: Participation Agreement (Yahoo Inc)
Fundamental Changes; Disposition of Assets. No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries (other than Non-Recourse Subsidiaries) to, enter into any transaction of merger or consolidation (other than in connection with an Investment permitted pursuant to Section 6.6)consolidation, or liquidate, wind-up wind‑up or dissolve itself (or suffer any liquidation or dissolution) into any other Person), or convey, sell, lease or license, exchange, transfer, assign, pledge transfer or otherwise dispose of or encumberof, 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 licensed, except:
(a) (i) any Restricted Subsidiary of Borrower Parent (other than a Pledged HoldcoBorrower) may be merged with or into any Borrower or any Guarantor SubsidiarySubsidiary 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 any Borrower or any Guarantor SubsidiarySubsidiary Guarantor; provided thatprovided, in the case of such a mergerBorrower, Borrower or such Guarantor SubsidiarySubsidiary Guarantor, as applicable, shall be the continuing or surviving Person;, or the transferee of the relevant business, property or assets, as the case may be and, (ii) any Non-U.S. Subsidiary of Parent (other than the Euro Borrower or a Euro Guarantor) may be merged with or into any wholly owned Non-U.S. Subsidiary of Parent, 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 wholly owned Non-U.S. Subsidiary of Parent; provided, a wholly owned Non-U.S. Subsidiary of Parent shall be the continuing, surviving or succeeding Person, or the transferee of the relevant business, property or assets, as the case may be; and (iii) any Restricted Subsidiary of Parent that is not a Credit Party may be merged with or into any Restricted Subsidiary of Parent 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 of, in one transaction or a series of transactions, to any Restricted Subsidiary of Parent that is not a Credit Party; provided, a wholly owned Restricted Subsidiary of Parent
(b) [Reserved];
(c) sales or other dispositions of assets that do not constitute Asset Sales;
(dc) Asset Sales; provided that (1i) the consideration received for such assets (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise in connection with such Asset Sales) under this clause (c) shall be in an amount at least equal to the fair market value thereof (determined in good faith by the manager board of Holdingsdirectors of Parent (or similar governing body)), (2ii) no less than 75% of such consideration thereof shall be paid in Cash or Cash Equivalents, (iii) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.11(a), and (3iv) immediately prior to any such Asset Sale and immediately after giving effect thereto, no Event of Default shall have occurred and be continuing or would result therefromat the time of such Asset Sale; provided, further, thatthat the provisions of clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower Representative) of less than $25,000,000; provided, further, that for purposes of this clause (dii), (i) any consideration in each of the form of Cash Equivalents that are disposed of for Cash within 30 Business Days after such Asset Sale following shall be deemed to be Cash consideration in an amount equal to Cash: (A) the amount of such Cash consideration, (ii) any liabilities (as shown on the Parent’s or such Restricted Subsidiary’s most recent balance sheet of Holdings and its Subsidiariesor in the notes thereto) of Holdings or any of its Subsidiaries, 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 or are otherwise cancelled in connection with respect such transaction, (B) any notes or other obligations or other securities or assets received by Parent or such Restricted Subsidiary from the transferee that are converted by Parent or such Restricted Subsidiary into cash within 180 days after receipt thereof (to the such Asset Sale and for which Holdings and its Subsidiaries shall have been validly released by all applicable creditors in writing shall be deemed to be extent of the Cash consideration in an amount equal to the liabilities so assumed received) and (iiiC) any Designated Non-Cash Consideration received by Holdings Parent or any of its Restricted Subsidiaries in respect of such Asset Sale having an aggregate fair market valuevalue (as determined in good faith by the Borrower Representative), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstandingC), not in excess of to exceed the greater of (x) $50,000,000 and (y) 1.5075,000,000.00 or 2.50% of Consolidated Total Assets Assets, as of the last day of the most recently ended Fiscal Quarter most recently endedfor which financial statements have been delivered pursuant to Section 5.1(a) or (b), at as applicable in the time of aggregate for all such designations during the receipt of such Designated Non-Cash Consideration, term this Agreement (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value);
(d) disposals of used, shall be deemed obsolete, damaged, worn out or surplus equipment or property, including any property that is no longer useful in the conduct of the business or otherwise economically impracticable to be Cash considerationmaintain, whether now owned or hereafter acquired, in the ordinary course of business (other than Intellectual Property);
(e) disposals of obsoleteall or substantially all of the assets of any Restricted Subsidiary to the a Borrower or another Restricted Subsidiary, worn out or surplus property;provided that if the transferor is a GuarantorCredit Party, the transferee must also be a GuarantorCredit Party.
(f) to the extent constituting an Asset Sale and/or a “Fundamental Change”, Indebtedness incurred in accordance with Section 6.1, Liens granted in accordance with Section 6.2, Restricted Junior Payments made in accordance with Section 6.4 and Investments made in accordance with Section 6.6;
(g) leases or licenses (including sublicenses and covenants not to xxx) of Intellectual Property, in the ordinary course of business;
(h) the settlement or write-off of accounts receivable or sale of overdue accounts receivable (including any discount or forgiveness thereof) for collection in the ordinary course of business;
(i) the disposition of Cash or Cash Equivalents in the ordinary course of business;
(j) the termination of a lease due to the default of the landlord thereunder or pursuant to any right of termination of the tenant under the lease;
(k) to the extent the BorrowerParent or any of its Restricted Subsidiaries determines in its reasonable business judgment is desirable in the conduct of its business, as lessor dispositions of Intellectual Property, including discontinuing the use or sublessormaintenance of, failing to pursue, or license otherwise abandoning, allowing to lapse, terminating or putting into the public domain, any Intellectual Property;
(other than any long-term exclusive license), as licensor or sublicensor, of real or personal property or Intellectual Property l) dispositions in the ordinary course of business and consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination of Borrower Representative, are not interfering in any respect with material to the ordinary conduct of or materially detracting from the business of Holdings or any SubsidiaryBorrowerParent and its Restricted Subsidiaries, taken as a whole;
(gm) internal corporate reorganizations dispositions of Investments in joint ventures or any Restricted Subsidiaries that are not wholly owned to the Subsidiaries of any Project Holdcoextent required by, or made pursuant to, buy/sell arrangements between joint venture or similar parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(hn) transfers of condemned property as a result of the issuance exercise of “eminent domain” or sale other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by Holdings deed in lieu of its Equity Interestscondemnation or otherwise), and transfers of property that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(o) the disposition of one or more plants located in the United Kingdom with a fair market value of approximately $10,000,000;
(p) any disposition made in accordance with Section 6.16 of the Stock Purchase Agreement; and
(q) a sale or other disposition of Accounts in connection with a Supplier Financing Transaction so long as at the time of such sale or other disposition, no Default or Event of Default exists or would result therefrom after giving pro forma effect to such sale or disposition. Notwithstanding the foregoing, the following transactions shall be permitted: (i) [reserved];the liquidation or dissolution of any Restricted Subsidiary (other than any Borrower) if the Borrower Representative determines in good faith that such liquidation or dissolution is in the best interests of Borrowerthe Borrowers, is not materially disadvantageous to the Lenders and BorrowerParent or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Subsidiary and (ii) any merger, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Asset Sale otherwise permitted under this Section 6.7 or (B) any Investment permitted under Section 6.6. Notwithstanding the foregoing, neither Parent nor the U.S. Borrower will sell, transfer, lease or otherwise dispose of, or permit the sale, transfer, lease or other disposition of (in one transaction or in a series of transactions, including by merger of a Subsidiary), all or substantially all the assets (including Equity Interests in Subsidiaries) of Parent and its Subsidiaries or the U.S. Borrower and its Restricted Subsidiaries considered on a consolidated basis, whether now owned or hereafter acquired, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing, any Person (other than Parent or the U.S. Borrower) may (a) merge into Parent in a transaction in which Parent is the surviving corporation or (b) merge into the U.S. Borrower in a transaction in which the U.S. Borrower is the surviving corporation.
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