Fundamental Changes; Disposition of Assets. No Borrower shall, nor shall it permit any of its Restricted 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 sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, 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: (a) (i) any Credit Party may be merged with or into any 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 another Credit Party; provided, in the case of such a merger (1) involving a Borrower, a Borrower shall be the continuing or surviving Person and (2) the continuing or surviving Person shall be organized under the laws of a state of the United States and (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 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; 41. (i) any Restricted Subsidiary may dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any Borrower or to another Restricted Subsidiary; provided that a Credit Party may make such disposition only to a Borrower or another Credit Party and (ii) any Restricted Subsidiary which is not a Credit Party may dispose of all or substantially all its assets to any Borrower or another Restricted Subsidiary; (b) sales, leases, licenses or other dispositions of assets that do not constitute Asset Sales pursuant to clauses (i) through (vi) of the definition of Asset Sale;
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Fundamental Changes; Disposition of Assets. No Borrower shall, nor shall it permit any of its Restricted 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 sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, 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:
: (a) (i) any Credit Party or Restricted Subsidiary may be merged or consolidated with or into any other Credit PartyParty or Restricted 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 ofsub-leased, in one transaction or a series of transactions, to another Credit Party; provided, in the case of such a merger (1) involving a Borrower, a Borrower shall be the continuing or surviving Person and (2) the continuing or surviving Person shall be organized under the laws of a state of the United States and (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, leasedexchanged, transferred or otherwise disposed of, in one transaction or a series of transactions, to a Credit Party or another Restricted Subsidiary; provided, in the case of such a merger or consolidation
(1) involving a Borrower, a Borrower shall be the continuing or surviving Person and (2) involving a Guarantor, either (x) a Borrower or Guarantor shall be the continuing or surviving Person, or (y) the relevant transaction shall be treated as an Investment and shall comply with Section 6.07; provided, further that any disposition made by any Credit Party to any 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;
41. Party shall be (i) for fair market value (as reasonably determined by such Person) with at least 75% of the consideration for such disposition consisting of Cash or Cash Equivalents at the time of such disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.07; (b) any Credit Party or Restricted Subsidiary may convey, sell, lease, sub-lease, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all any part of its assets (upon voluntary liquidation or otherwise) to any Borrower Credit Party or to another Restricted Subsidiary; provided that a any disposition made by any Credit Party may make such disposition only to a Borrower or another Credit Party and (ii) any Restricted Subsidiary which that is not a Credit Party may dispose shall be (i) for fair market value (as reasonably determined by such Person) with at least 75% of all the consideration for such disposition consisting of Cash or substantially all its assets to any Borrower Cash Equivalents at the time of such disposition or another Restricted Subsidiary;
(bii) treated as an Investment and otherwise made in compliance with Section 6.07; (c) sales, leases, licenses or other dispositions of assets consisting of (i) inventory (or other assets) sold, licensed (on a non-exclusive basis) or leased in the ordinary course of business, (ii) equipment or other assets sold, replaced, abandoned, leased or otherwise disposed of that do are obsolete, worn-out or are no longer used or useful in the business of the Credit Parties or any of their Subsidiaries, (iii) dispositions, by means of trade-in, of equipment used in the ordinary course of business, so long as such equipment is replaced, substantially concurrently, by like-kind equipment, (iv) the use, transfer or other disposition of Cash and Cash Equivalents in a manner that is not constitute prohibited by the terms of this Agreement or any other Credit Document, and (v) the licensing, on a non-exclusive basis, of patents, trademarks, copyrights and other intellectual property rights; (d) the Borrowers and the Restricted Subsidiaries may make Asset Sales (other than the sale or disposition of all or substantially all of the assets of the Borrowers and the Restricted Subsidiaries); provided
(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 Borrower Representative or the applicable Credit Party), (2) with respect to Asset Sales pursuant to clauses this
(i) through a sale, assignment or other transfer of Receivables Assets, or participations therein, and related assets to a Receivables Subsidiary in a Qualified Receivables Financing and (ii) a sale, assignment or other transfer of Receivables Assets, or participations therein, and related assets by a Receivables Subsidiary in a Qualified Receivables Financing; (f) to the extent such transaction would otherwise be subject to this Section 6.09, (i) the creation of a Permitted Lien under Section 6.02, (ii) Investments made in accordance with Section 6.07 (other than Section 6.07(q)), (iii) Restricted Payments made in accordance with Section 6.05(a), (iv) Restricted Debt Payments made in accordance with Section 6.05(b), (v) any sales or issuances of Disqualified Capital Stock permitted by Section 6.01, (vi) any sales or issuances of Capital Stock by any Restricted Subsidiary to (1) any Borrower, (2) any Restricted Subsidiary and (3) any other existing owner of Capital Stock of such Restricted Subsidiary on a not more than pro rata basis based on their relative ownership interests of the definition relevant class of Capital Stock of such Restricted Subsidiary and (vii) any sales or issuances of Capital Stock (other than Disqualified Capital Stock) by the Initial Borrower to PRTH; (g) the lapse of registered intellectual property of a Borrower or any of its Restricted Subsidiaries that is no longer used or useful in the business of the Credit Parties; (h) the settlement or write-off of accounts receivable or sale of overdue accounts receivable for collection in the ordinary course of business consistent with past practice; (i) leases, licenses or sublicenses of real or personal property in the ordinary course of business and to the extent not otherwise expressly prohibited by this Agreement or the other Credit Documents; NAI-1539971432v8 AMERICAS 126787728 172 (j) the disposition of property which constitutes, or which is subject to, a casualty event or condemnation, in each case, so long as the proceeds thereof are applied in accordance with the terms of this Agreement; (k) the sale or other disposition of a nominal amount of Capital Stock in any Restricted Subsidiary in order to qualify members of the board of directors or equivalent governing body of such Restricted Subsidiary to the extent required by applicable law; (l) the unwinding or settlement of any Interest Rate Agreement permitted under Section 6.01 pursuant to its terms; (m) cancellation of any intercompany Indebtedness among the Credit Parties; (n) the termination, surrender or sublease of a real estate lease of any Credit Party that is no longer used or useful in its business in the ordinary course of its business; (o) any sale of Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; (p) Asset Sale;Sales of Permitted Joint Venture Investments to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (q) sales or other dispositions (i) of any non-core assets acquired in connection with any Permitted Acquisitions or other similar Investments in compliance with Section 6.07, or (ii) to obtain the approval of an anti-trust authority or required to comply with any order of any other agency, authority or regulatory body or requirements of law (including, in each case, in connection with a Permitted Acquisition or other similar Investment); and (r) other sales or dispositions in an amount not to exceed in any Fiscal Year the greater of (x) $8,940,000 and (y) 5% of Consolidated Adjusted EBITDA for the most recently ended Test Period (with unused amounts permitted to be carried forward to the next succeeding Fiscal Year).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Fundamental Changes; Disposition of Assets. No Borrower shall, nor shall it permit any of its Restricted 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 sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, 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:
(a) (i) any Credit Party (other than Holdings) may be merged with or into any other Credit PartyParty (other than Holdings), 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 another Credit PartyParty (other than Holdings); provided, in the case of such a merger (1) involving a Borrower, a Borrower shall be the continuing or surviving Person and (2) the continuing or surviving Person shall be organized under the laws of a state of the United States and (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 of, in one transaction or a series of transactions, to a Credit Party (other than Holdings) 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;
41. (i) any Restricted Subsidiary may dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any Borrower or to another Restricted Subsidiary; provided that a Credit Party may make such disposition only to a Borrower or another Credit Party and (ii) any Restricted Subsidiary which is not a Credit Party may dispose of all or substantially all its assets to any Borrower or another Restricted Subsidiary;
(bc) sales, leases, licenses or other dispositions of assets that do not constitute Asset Sales pursuant to clauses (i) through (vi) of the definition of Asset Sale;
(d) the Borrowers and the Restricted Subsidiaries may make Asset Sales, the proceeds of which are less than $10,000,000 when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year; provided (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 Borrower Representative or the applicable Credit Party), (2) with respect to Asset Sales pursuant to this clause (d) for an aggregate purchase price in excess of $5,000,000 in any Fiscal Year, at least 75% of the purchase price for such assets shall be paid to the Borrower Representative or such Restricted Subsidiary in Cash or Cash Equivalents (in each case, free and clear of Liens at the time received) (in each case, other than non-consensual Liens permitted by Section 6.02 and Liens permitted by Sections 6.02(a), (p), (u), (v) and (w)); provided, however, that, for the purposes of this clause (2), the following shall be deemed to be cash: (A) any liabilities (as shown on Holdings’ most recent balance sheet provided hereunder or in the footnotes thereto) of Holdings or such Restricted Subsidiary, 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 applicable Asset Sale and for which Holdings and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by Holdings or the applicable Restricted Subsidiary from such transferee that are converted by Holdings or such Restricted Subsidiary into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within ninety (90) days following the closing of the applicable Asset Sale, and (C) aggregate non-Cash consideration received by Holdings or the applicable Restricted Subsidiary having an aggregate fair market value (determined as of the closing of the applicable Asset Sale for which such non-Cash consideration is received) not to exceed $2,000,000 at any time, (3) the Net Asset Sale Proceeds thereof shall be applied to prepay the Loans to the extent required by Section 2.13(a) and (4) at the time of such Asset Sale, no Event of Default shall exist or would result from such Asset Sale (other than any such Asset Sale made pursuant to a legally binding commitment entered into at a time when no Event of Default has occurred and is continuing);
(e) [reserved];
(f) Investments made in accordance with Section 6.07 (other than Section 6.07(q));
(g) the lapse of registered immaterial intellectual property of a Borrower or any of its Restricted Subsidiaries that is no longer used or useful in the business of the Credit Parties;
(h) the settlement or write-off of accounts receivable or sale of overdue accounts receivable for collection in the ordinary course of business consistent with past practice;
(i) leases, licenses or sublicenses of real or personal property in the ordinary course of business consistent with past practice and to the extent not otherwise expressly prohibited by this Agreement or the other Credit Documents;
(j) the disposition of property which constitutes, or which is subject to, a casualty event or condemnation, in each case, so long as the proceeds thereof are applied in accordance with the terms of this Agreement;
(k) the sale or other disposition of a nominal amount of Capital Stock in any Restricted Subsidiary in order to qualify members of the board of directors or equivalent governing body of such Restricted Subsidiary to the extent required by applicable law;
(l) the unwinding or settlement of any Interest Rate Agreement permitted under Section 6.01 pursuant to its terms;
(m) cancellation of any intercompany Indebtedness among the Credit Parties;
(n) the termination, surrender or sublease of a real estate lease of any Credit Party that is no longer used or useful in its business in the ordinary course of its business;
(o) any sale of Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(p) Asset Sales of Permitted Joint Venture Investments to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Fundamental Changes; Disposition of Assets. No Borrower shall, nor shall it permit any of its Restricted 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 sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, 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:
(a) (i) any Credit Party may be merged with or into any 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 another Credit Party; provided, in the case of such a merger (1) involving a Borrower, a Borrower shall be the continuing or surviving Person and (2) the continuing or surviving Person shall be organized under the laws of a state of the United States and (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 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;
41. (i) any Restricted Subsidiary may dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any Borrower or to another Restricted Subsidiary; provided that a Credit Party may make such disposition only to a Borrower or another Credit Party and (ii) any Restricted Subsidiary which is not a Credit Party may dispose of all or substantially all its assets to any Borrower or another Restricted Subsidiary;
(b) sales, leases, licenses or other dispositions of assets that do not constitute Asset Sales pursuant to clauses (i) through (vi) of the definition of Asset Sale;
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Fundamental Changes; Disposition of Assets. No Borrower shallshall not, nor shall it permit any of its Restricted 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 sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, 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:
(a) (i) any Credit Party (other than Borrower) may be merged with or into any 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 another Credit Party; provided, in the case of such a merger (1) involving a Borrower, a Borrower shall be the continuing or surviving Person and (2) the continuing or surviving Person shall be organized under the laws of a state of the United States and (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 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;
41. (i) any Restricted Subsidiary may dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any Borrower or to another Restricted Subsidiary; provided that a Credit Party may make such disposition only to a Borrower or another Credit Party and (ii) any Restricted Subsidiary which is not a Credit Party may dispose of all or substantially all its assets to any Borrower or another Restricted Subsidiary;
(bc) sales, leases, licenses or other dispositions of assets that do not constitute Asset Sales pursuant to clauses (i) through (vi) of the definition of Asset Sale;
(d) the Restricted Subsidiaries may make Asset Sales, the proceeds of which are less than $11,500,000 when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year; provided
(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 Borrower or the applicable Credit Party), (2) with respect to Asset Sales pursuant to this clause (d) for an aggregate purchase price in excess of $5,750,000 in any Fiscal Year, at least 75% of the purchase price for such assets shall be paid to the Borrower or such Restricted Subsidiary in Cash or Cash Equivalents (in each case, free and clear of Liens at the time received) (in each case, other than non-consensual Liens permitted by Section 6.02 and Liens permitted by Sections 6.02(a), (p), (u) and (v)); provided, however, that, for the purposes of this clause (2), the following shall be deemed to be cash: (A) any liabilities (as shown on Borrower’s most recent balance sheet provided hereunder or in the footnotes thereto) of Borrower or such Restricted Subsidiary, 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 applicable Asset Sale and for which Borrower and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by Borrower or the applicable Restricted Subsidiary from such transferee that are converted by Borrower or such Restricted Subsidiary into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within ninety (90) days following the closing of the applicable Asset Sale, and (C) aggregate non-Cash consideration received by Borrower or the applicable Restricted Subsidiary having an aggregate fair market value (determined as of the closing of the applicable Asset Sale for which such non-Cash consideration is received) not to exceed $2,300,000 at any time, (3) the net proceeds thereof shall be applied to prepay the Loans to the extent required by Section 2.13(a) of the Senior Credit Agreement and (4) at the time of such Asset Sale, no Event of Default shall exist or would result from such Asset Sale (other than any such Asset Sale made pursuant to a legally binding commitment entered into at a time when no Event of Default has occurred and is continuing);
(e) [intentionally reserved];
(f) Investments made in accordance with Section 6.07 (other than Section 6.07(q));
(g) the lapse of registered immaterial intellectual property of any Restricted Subsidiaries that is no longer used or useful in the business of the Credit Parties;
(h) the settlement or write-off of accounts receivable or sale of overdue accounts receivable for collection in the ordinary course of business consistent with past practice;
(i) leases, licenses or sublicenses of real or personal property in the ordinary course of business consistent with past practice and to the extent not otherwise expressly prohibited by this Agreement or the other Credit Documents;
(j) the disposition of property which constitutes, or which is subject to, a casualty event or condemnation;
(k) the sale or other disposition of a nominal amount of Capital Stock in any Restricted Subsidiary in order to qualify members of the board of directors or equivalent governing body of such Restricted Subsidiary to the extent required by applicable law;
(l) the unwinding or settlement of any Interest Rate Agreement permitted under Section 6.01 pursuant to its terms;
(m) cancellation of any intercompany Indebtedness among the Credit Parties;
(n) the termination, surrender or sublease of a real estate lease of any Credit Party that is no longer used or useful in its business in the ordinary course of its business;
(o) any sale of Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(p) Asset Sales of Permitted Joint Venture Investments to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Fundamental Changes; Disposition of Assets. No Borrower shallshall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up wind‑up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease sub‑lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, 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:
(a) (i) any Credit Party (other than Borrower) may be merged with or into any 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 another Credit Party; provided, in the case of such a merger (1) involving a Borrower, a Borrower shall be the continuing or surviving Person and (2) the continuing or surviving Person shall be organized under the laws of a state of the United States and (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 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;
41. (i) any Restricted Subsidiary may dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any Borrower or to another Restricted Subsidiary; provided that a Credit Party may make such disposition only to a Borrower or another Credit Party and (ii) any Restricted Subsidiary which is not a Credit Party may dispose of all or substantially all its assets to any Borrower or another Restricted Subsidiary;
(bc) sales, leases, licenses or other dispositions of assets that do not constitute Asset Sales pursuant to clauses (i) through (vi) of the definition of Asset Sale;
(d) the Restricted Subsidiaries may make Asset Sales, the proceeds of which are less than $11,500,000 when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year; provided
(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 Borrower or the applicable Credit Party), (2) with respect to Asset Sales pursuant to this clause (d) for an aggregate purchase price in excess of $5,750,000 in any Fiscal Year, at least 75% of the purchase price for such assets shall be paid to the Borrower or such Restricted Subsidiary in Cash or Cash Equivalents (in each case, free and clear of Liens at the time received) (in each case, other than non-consensual Liens permitted by Section 6.02 and Liens permitted by Sections 6.02(a), (p), (u) and (v)); provided, however, that, for the purposes of this clause (2), the following shall be deemed to be cash: (A) any liabilities (as shown on Borrower’s most recent balance sheet provided hereunder or in the footnotes thereto) of Borrower or such Restricted Subsidiary, 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 applicable Asset Sale and for which Borrower and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by Borrower or the applicable Restricted Subsidiary from such transferee that are converted by Borrower or such Restricted Subsidiary into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within ninety (90) days following the closing of the applicable Asset Sale, and (C) aggregate non-Cash consideration received by Borrower or the applicable Restricted Subsidiary having an aggregate fair market value (determined as of the closing of the applicable Asset Sale for which such non-Cash consideration is received) not to exceed $2,300,000 at any time, (3) the net proceeds thereof shall be applied to prepay the Loans to the extent required by Section 2.13(a) of the Senior Credit Agreement and (4) at the time of such Asset Sale, no Event of Default shall exist or would result from such Asset Sale (other than any such Asset Sale made pursuant to a legally binding commitment entered into at a time when no Event of Default has occurred and is continuing);
(e) [intentionally reserved];
(f) Investments made in accordance with Section 6.07 (other than Section 6.07(q));
(g) the lapse of registered immaterial intellectual property of any Restricted Subsidiaries that is no longer used or useful in the business of the Credit Parties;
(h) the settlement or write‑off of accounts receivable or sale of overdue accounts receivable for collection in the ordinary course of business consistent with past practice;
(i) leases, licenses or sublicenses of real or personal property in the ordinary course of business consistent with past practice and to the extent not otherwise expressly prohibited by this Agreement or the other Credit Documents;
(j) the disposition of property which constitutes, or which is subject to, a casualty event or condemnation;
(k) the sale or other disposition of a nominal amount of Capital Stock in any Restricted Subsidiary in order to qualify members of the board of directors or equivalent governing body of such Restricted Subsidiary to the extent required by applicable law;
(l) the unwinding or settlement of any Interest Rate Agreement permitted under Section 6.01 pursuant to its terms;
(m) cancellation of any intercompany Indebtedness among the Credit Parties;
(n) the termination, surrender or sublease of a real estate lease of any Credit Party that is no longer used or useful in its business in the ordinary course of its business;
(o) any sale of Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary; and
(p) Asset Sales of Permitted Joint Venture Investments to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements.; and
(q) [*]
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
