Fundamental Changes; Disposition of Assets. The Borrowers shall not, nor shall they permit any of their respective Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or make any Disposition having a fair market value in excess of $1,000,000, in a single transaction or in a related series of transactions, except: (a) (i) any Borrower may be merged, consolidated or amalgamated with or into any Person (including another Borrower), convey, sell, transfer or otherwise dispose of all or substantially all of its business, assets or property to another Person (including another Borrower), or be converted into another Person; provided that a Borrower shall be the surviving Person and (ii) any Subsidiary may be merged or consolidated or amalgamated with or into, converted into, or convey, sell, transfer or otherwise dispose of all or substantially all of its business, assets or property to, any Borrower, any other Subsidiary or any other Person; provided that (x) in the case of such a transaction involving any Borrower, such Borrower shall be the continuing or surviving Person, (y) in the case of such a transaction involving any Subsidiary Guarantor, either (A) a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume all of the obligations of such Subsidiary Guarantor under this Agreement and the other Loan Documents to which such Subsidiary Guarantor is a part of pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent or (B) such transaction shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof) and (z) in the case of such a transaction involving a Subsidiary, either (A) a Subsidiary shall be the continuing or surviving Person or (B) such transaction shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (b) Dispositions (including of Capital Stock) among the Borrowers and their respective Subsidiaries (upon voluntary liquidation or otherwise); provided that any such Disposition by a Loan Party to a Person that is not a Loan Party shall be (i) for fair market value (as reasonably determined by such Person) and at least 75.0% of the consideration for such Disposition consists of Cash or Cash Equivalents or Designated Non-Cash Consideration at the time of such Disposition (provided, that, any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (b) that is at that time outstanding, not in excess of the greater of $5,000,000 and 0.35% of Consolidated Total Assets of the Borrowers, determined at the time of such Disposition (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(b) or (c), as applicable, in each case, shall be deemed to be Cash) or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof); (i) the liquidation or dissolution of any Subsidiary (other than Netsmart Technologies) or change in form of entity of any Borrower or any Subsidiary if the Borrowers determine in good faith that such liquidation, dissolution or change in form, as applicable, (x) is in the best interests of the Borrowers and (y) is not materially disadvantageous to the Lenders and, in the case of a liquidation or dissolution of any such Subsidiary either the Borrowers or a 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 6.06 (other than Section 6.06(j)) and (ii) any merger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) a Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) an Investment permitted under Section 6.06 (other than in reliance on clause (j) thereof); provided, further, in the case of a change in the form of entity of any Borrower or any Subsidiary that is a Loan Party, the security interests in the Collateral of such Loan Party shall remain in full force and effect and perfected to the same extent as prior to such change; (d) (x) Dispositions 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) Dispositions of surplus, obsolete, used or worn out property or other property (including intellectual property) that, in the reasonable judgment of the Borrowers, is (A) no longer useful in its business (or in the business of any of their respective Subsidiaries) or (B) otherwise economically impracticable to maintain 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 Borrowers reasonably determines are surplus assets; (f) Dispositions of Cash Equivalents or other assets that were Cash Equivalents when the original Investment was made (in each case, for the fair market value thereof); (g) Dispositions, mergers, amalgamations, consolidations or conveyances that constitute Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), Permitted Liens, Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix)), Restricted Debt Payments permitted by Section 6.04(b) and Sale and Lease-back Transactions permitted by Section 6.08; (h) Dispositions for fair market value; provided that with respect to any such Disposition (in a single transaction or in a series of related transactions) with a purchase price in an aggregate amount in excess of the greater of $2,500,000 and 2.5% of Consolidated Adjusted EBITDA of the Borrowers, as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(b) or (c), as applicable, at least 75.0% of the consideration for such 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 (I) that are contractually subordinated in right of payment or security to the Obligations or (II) that are owed to Holdings, the Borrowers or a Subsidiary) of the Borrowers or any applicable 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 Borrowers and their respective Subsidiaries shall have been validly released by all relevant creditors in writing, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (y) any Securities received by the Borrowers or any Subsidiary from such transferee that are converted by such Person into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $5,000,000 and 0.35% of Consolidated Total Assets of the Borrowers, determined at the time of such Disposition (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(b) or (c), as applicable, in each case, shall be deemed to be Cash); provided, further, that (i) (A) on the date of the execution the agreement governing such Disposition, no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) shall then exist or would result therefrom and (B) immediately prior to and after giving effect to the consummation of such Disposition, no Event of Default shall then exist or would result therefrom and (ii) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.12(b)(iii); (i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property; (j) Dispositions of Investments in joint ventures or any Subsidiary that is not a Wholly-Owned Subsidiary to the extent required by, or made pursuant to, buy/sell arrangements between the joint venture or similar parties set forth in joint venture arrangements and similar binding arrangements; (k) Dispositions, discounting or forgiveness of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof; (l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses, which (i) in the good faith determination of the Borrower do not materially interfere with the business of the Borrowers and their respective Subsidiaries or (ii) relate to closed branches or manufacturing facilities or the discontinuation of any product or service line; (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 (including in tort) in the ordinary course of business; (n) Dispositions of property subject to casualty, foreclosure, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding); (o) Disposition or consignment, license, sublicense, conveyance of equipment, inventory or other assets (including fee and leasehold interests in real property) with respect to facilities that are not in use, held for sale or closed; provided that the Net Proceeds of any such Disposition of fee owned Real Estate Assets shall be applied and/or reinvested as (and to the extent) required by Section 2.12(b)(iii); (p) Dispositions in connection with the Transactions that are contemplated by the Acquisition Agreement; (q) Dispositions of non-core assets acquired in connection with an acquisition permitted hereunder and sales of Real Estate Assets acquired in an acquisition permitted hereunder which, within 90 days of the date of the acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of the Borrowers or any of their respective Subsidiaries or any of their respective businesses; provided that (i) the Net Proceeds received in connection with any such Dispositions shall be applied and/or reinvested as (and to the extent) required by Section 2.12(b)(iii) and (ii) no Event of Default shall have occurred and be continuing on the date on which the definitive agreement governing the relevant Disposition is executed; (r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as the exchange or swap is made for fair value (as reasonably determined by the Borrowers) for like property or assets; provided that (i) within 90 days of any such exchange or swap, in the case of any Loan Party and to the extent such property does not constitute an “Excluded Asset” (as defined in the Pledge and Security Agreement), the Administrative Agent has a perfected Lien having the same priority as any Lien held on the Real Estate Assets so exchanged or 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 2.12(b)(iii); (s) [Reserved]; (i) Dispositions, licensing, sublicensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrowers or any Subsidiary in the ordinary course of business, and (ii) the Disposition, abandonment, cancellation or lapse of IP Rights, or any issuances or registrations, or applications for issuances or registrations, of any IP Rights, which, in the reasonable good faith determination of the Borrowers are not material to the business and operations of the Borrowers and/or their respective Subsidiaries; (u) terminations of Derivative Transactions; (v) Dispositions of Capital Stock of, or sale of Indebtedness or other Securities of, Unrestricted Subsidiaries; (w) [Reserved]; (x) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction; (y) Dispositions of assets in connection with the closing or sale of an office in the ordinary course of business of the Borrowers and their respective Subsidiaries, which consist of leasehold interests in the premises of such office, the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such office; provided that as to each and all such sales and closings, (i) (x) on the date on which the agreement governing such Disposition is executed, no Event of Default shall then exist or result therefrom and (y) immediately prior to and after giving effect to the consummation of such Disposition, no Event of Default under Section 7.01(a), (f) or (g) shall then exist or result therefrom and (ii) such sale shall be on commercially reasonable prices and terms in a bona fide arm’s-length transaction; (z) the sale of motor vehicles, aircraft and information technology equipment purchased at the end of an operating lease and resold thereafter; and (aa) Dispositions of letters of credit and/or bank guarantees (and/or the rights thereunder) to banks or other financial institutions in the ordinary course of business in exchange for Cash and/or Cash Equivalents. To the extent any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, the Liens on such Collateral created by the Loan Documents shall be automatically released in accordance with Section 8.10(a)(i)(y) and the applicable provisions of the Pledge and Security Agreement, and the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing. For purposes of determining compliance at any time with this Section 6.07, the Borrowers, in their sole discretion, from time to time, may classify or reclassify such transaction or item (or portion thereof) in accordance with Section 1.03.
Appears in 1 contract
Samples: First Lien Credit Agreement (Allscripts Healthcare Solutions, Inc.)
Fundamental Changes; Disposition of Assets. The Borrowers shall not, nor shall they permit any of their respective Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or make any Disposition having a fair market value in excess of $1,000,0001,200,000, in a single transaction or in a related series of transactions, except:
(a) (i) any Borrower may be merged, consolidated or amalgamated with or into any Person (including another Borrower), convey, sell, transfer or otherwise dispose of all or substantially all of its business, assets or property to another Person (including another Borrower), or be converted into another Person; provided that a Borrower shall be the surviving Person and (ii) any Subsidiary may be merged or consolidated or amalgamated with or into, converted into, or convey, sell, transfer or otherwise dispose of all or substantially all of its business, assets or property to, any Borrower, any other Subsidiary or any other Person; provided that (x) in the case of such a transaction involving any Borrower, such Borrower shall be the continuing or surviving Person, (y) in the case of such a transaction involving any Subsidiary Guarantor, either (A) a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume all of the obligations of such Subsidiary Guarantor under this Agreement and the other Loan Documents to which such Subsidiary Guarantor is a part of pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent or (B) such transaction shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof) and (z) in the case of such a transaction involving a Subsidiary, either (A) a Subsidiary shall be the continuing or surviving Person or (B) such transaction shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof);
(b) Dispositions (including of Capital Stock) among the Borrowers and their respective Subsidiaries (upon voluntary liquidation or otherwise); provided that any such Disposition by a Loan Party to a Person that is not a Loan Party shall be (i) for fair market value (as reasonably determined by such Person) and at least 75.0% of the consideration for such Disposition consists of Cash or Cash Equivalents or Designated Non-Cash Consideration at the time of such Disposition (provided, that, any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (b) that is at that time outstanding, not in excess of the greater of $5,000,000 6,000,000 and 0.350.42% of Consolidated Total Assets of the Borrowers, determined at the time of such Disposition (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(b) or (c), as applicable, in each case, shall be deemed to be Cash) or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Subsidiary (other than Netsmart Technologies) or change in form of entity of any Borrower or any Subsidiary if the Borrowers determine in good faith that such liquidation, dissolution or change in form, as applicable, (x) is in the best interests of the Borrowers and (y) is not materially disadvantageous to the Lenders and, in the case of a liquidation or dissolution of any such Subsidiary either the Borrowers or a 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 6.06 (other than Section 6.06(j)) and (ii) any merger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) a Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) an Investment permitted under Section 6.06 (other than in reliance on clause (j) thereof); provided, further, in the case of a change in the form of entity of any Borrower or any Subsidiary that is a Loan Party, the security interests in the Collateral of such Loan Party shall remain in full force and effect and perfected to the same extent as prior to such change;
(d) (x) Dispositions 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) Dispositions of surplus, obsolete, used or worn out property or other property (including intellectual property) that, in the reasonable judgment of the Borrowers, is (A) no longer useful in its business (or in the business of any of their respective Subsidiaries) or (B) otherwise economically impracticable to maintain 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 Borrowers reasonably determines are surplus assets;
(f) Dispositions of Cash Equivalents or other assets that were Cash Equivalents when the original Investment was made (in each case, for the fair market value thereof);
(g) Dispositions, mergers, amalgamations, consolidations or conveyances that constitute Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), Permitted Liens, Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix)), Restricted Debt Payments permitted by Section 6.04(b) and Sale and Lease-back Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition (in a single transaction or in a series of related transactions) with a purchase price in an aggregate amount in excess of the greater of $2,500,000 3,000,000 and 2.53.0% of Consolidated Adjusted EBITDA of the Borrowers, as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(b) or (c), as applicable, at least 75.0% of the consideration for such 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 (I) that are contractually subordinated in right of payment or security to the Obligations or (II) that are owed to Holdings, the Borrowers or a Subsidiary) of the Borrowers or any applicable 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 Borrowers and their respective Subsidiaries shall have been validly released by all relevant creditors in writing, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (y) any Securities received by the Borrowers or any Subsidiary from such transferee that are converted by such Person into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $5,000,000 6,000,000 and 0.350.42% of Consolidated Total Assets of the Borrowers, determined at the time of such Disposition (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(b) or (c), as applicable, in each case, shall be deemed to be Cash); provided, further, that (i) (A) on the date of the execution the agreement governing such Disposition, no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) shall then exist or would result therefrom and (B) immediately prior to and after giving effect to the consummation of such Disposition, no Event of Default shall then exist or would result therefrom and (ii) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.12(b)(iii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of Investments in joint ventures or any Subsidiary that is not a Wholly-Owned Subsidiary to the extent required by, or made pursuant to, buy/sell arrangements between the joint venture or similar parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions, discounting or forgiveness of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses, which (i) in the good faith determination of the Borrower do not materially interfere with the business of the Borrowers and their respective Subsidiaries or (ii) relate to closed branches or manufacturing facilities or the discontinuation of any product or service line;
(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 (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to casualty, foreclosure, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Disposition or consignment, license, sublicense, conveyance of equipment, inventory or other assets (including fee and leasehold interests in real property) with respect to facilities that are not in use, held for sale or closed; provided that the Net Proceeds of any such Disposition of fee owned Real Estate Assets shall be applied and/or reinvested as (and to the extent) required by Section 2.12(b)(iii);
(p) Dispositions in connection with the Transactions that are contemplated by the Acquisition Agreement;
(q) Dispositions of non-core assets acquired in connection with an acquisition permitted hereunder and sales of Real Estate Assets acquired in an acquisition permitted hereunder which, within 90 days of the date of the acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of the Borrowers or any of their respective Subsidiaries or any of their respective businesses; provided that (i) the Net Proceeds received in connection with any such Dispositions shall be applied and/or reinvested as (and to the extent) required by Section 2.12(b)(iii) and (ii) no Event of Default shall have occurred and be continuing on the date on which the definitive agreement governing the relevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as the exchange or swap is made for fair value (as reasonably determined by the Borrowers) for like property or assets; provided that (i) within 90 days of any such exchange or swap, in the case of any Loan Party and to the extent such property does not constitute an “Excluded Asset” (as defined in the Pledge and Security Agreement), the Administrative Agent has a perfected Lien having the same priority as any Lien held on the Real Estate Assets so exchanged or 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 2.12(b)(iii);
(s) [Reserved];
(i) Dispositions, licensing, sublicensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrowers or any Subsidiary in the ordinary course of business, and (ii) the Disposition, abandonment, cancellation or lapse of IP Rights, or any issuances or registrations, or applications for issuances or registrations, of any IP Rights, which, in the reasonable good faith determination of the Borrowers are not material to the business and operations of the Borrowers and/or their respective Subsidiaries;
(u) terminations of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sale of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [Reserved];
(x) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(y) Dispositions of assets in connection with the closing or sale of an office in the ordinary course of business of the Borrowers and their respective Subsidiaries, which consist of leasehold interests in the premises of such office, the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such office; provided that as to each and all such sales and closings, (i) (x) on the date on which the agreement governing such Disposition is executed, no Event of Default shall then exist or result therefrom and (y) immediately prior to and after giving effect to the consummation of such Disposition, no Event of Default under Section 7.01(a), (f) or (g) shall then exist or result therefrom and (ii) such sale shall be on commercially reasonable prices and terms in a bona fide arm’s-length transaction;
(z) the sale of motor vehicles, aircraft and information technology equipment purchased at the end of an operating lease and resold thereafter; and
(aa) Dispositions of letters of credit and/or bank guarantees (and/or the rights thereunder) to banks or other financial institutions in the ordinary course of business in exchange for Cash and/or Cash Equivalents. To the extent any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, the Liens on such Collateral created by the Loan Documents shall be automatically released in accordance with Section 8.10(a)(i)(y) and the applicable provisions of the Pledge and Security Agreement, and the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing. For purposes of determining compliance at any time with this Section 6.07, the Borrowers, in their sole discretion, from time to time, may classify or reclassify such transaction or item (or portion thereof) in accordance with Section 1.03.
Appears in 1 contract
Samples: Second Lien Term Loan Agreement (Allscripts Healthcare Solutions, Inc.)
Fundamental Changes; Disposition of Assets. The Borrowers Borrower shall not, nor shall they it permit any of their respective its Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or make any Disposition of assets having a fair market value in excess of $1,000,0003,000,000, in a single transaction or in a related series of transactions, except:
(a) (i) any the Borrower may be merged, consolidated or amalgamated with or into any Person (including another Borrower)Person, or convey, sell, transfer or otherwise dispose of all or substantially all of its consolidated business, assets or property to another Person (including another Borrower), or be converted into another Person; provided provided, that a (x)
(A) the Borrower shall be the surviving Person or (B) the Person formed by or surviving any such merger, consolidation or amalgamation (if other than the Borrower) or to which such conveyance, sale, transfer or other disposition will have been made (such surviving Person, the “Successor Borrower”), shall (i) expressly assume all of the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party (and the Loan Guarantors shall reaffirm (pursuant to a customary reaffirmation agreement) their Loan Guaranties and other obligations under the Loan Documents) pursuant to an agreement in form reasonably satisfactory to the Administrative Agent and (ii) be an entity organized under the laws of the U.S., any state thereof or the District of Columbia, (y) no Default or Event of Default then exists or would result therefrom and (z) the Borrower shall deliver a certificate of a Responsible Officer with respect to the satisfaction of the conditions under clause (y) of this proviso; and (ii) any Subsidiary may be merged or consolidated or amalgamated with or into, converted into, or convey, sell, transfer or otherwise dispose of all or substantially all of its business, assets or property to, any the Borrower, any other Subsidiary or any other Person; provided that (x) in the case of such a transaction involving any the Borrower, such the Borrower shall be the continuing or surviving Person, (y) in the case of such a transaction involving any Subsidiary Guarantor, either (A) a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person (I) shall be an entity organized under the laws of the U.S., any state thereof or the District of Columbia (or be a Discretionary Guarantor) and (II) shall expressly assume all of the obligations of such Subsidiary Guarantor under this Agreement and the other Loan Documents to which such Subsidiary Guarantor is a part of party pursuant to a supplement hereto or thereto an agreement in form reasonably satisfactory to the Administrative Agent or (B) such transaction shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on of clause (j) thereof) and (z) in the case of such a transaction involving a Subsidiary, either (A) a Subsidiary shall be the continuing or surviving Person or (B) such transaction shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on of clause (j) thereof); provided, further that if the conditions set forth above in clause (i) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents;
(b) Dispositions (including of Capital Stock) among the Borrowers Borrower and their respective its Subsidiaries (upon voluntary liquidation or otherwise); provided that any such Disposition by a Loan Party to a Person that is not a Loan Party shall be (i) for fair market value (as reasonably determined by such Person) and at least 75.0% of the consideration for such Disposition consists of Cash or Cash Equivalents or Designated Non-Cash Consideration at the time of such Disposition (provided, that, any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (b) that is at that time outstanding, not in excess of the greater of $5,000,000 and 0.35% of Consolidated Total Assets of the Borrowers, determined at the time of such Disposition (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(b) or (c), as applicable, in each case, shall be deemed to be Cash) or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
(i) the liquidation or dissolution of any Subsidiary (other than Netsmart Technologies) or change in form of entity of any Borrower or any Subsidiary if the Borrowers determine Borrower determines in good faith that such liquidation, liquidation or dissolution or change in form, as applicable, (x) is in the best interests of the Borrowers Borrower and (y) is not materially disadvantageous to the Lenders and, in the case of (taken as a liquidation or dissolution of any such Subsidiary whole) and either the Borrowers Borrower or a 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 6.06 (other than Section 6.06(jin reliance on clause (j) thereof)) and , (ii) any merger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) a Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or (g) or this clause (c)) or (B) an Investment permitted under Section 6.06 (other than in reliance on clause (j) thereof); providedprovided that any such merger, furtheramalgamation, dissolution, liquidation or consolidation involving the Borrower shall satisfy the requirements set forth in clause (a) of this Section 6.07 (and no dissolution or liquidation of the case Borrower shall be permitted hereunder other than as part of a change in merger, amalgamation or consolidation permitted with respect to the form Borrower under clause (a) of entity of any this Section 6.07); and (iii) Holdings, the Borrower or any Subsidiary may be converted into another form of entity, in each case, so long as such conversion does not adversely affect the value (including, with respect to Collateral, after giving consideration to the extent of perfection and priority of Liens on such Collateral) of the Loan Guaranty or Collateral (it being understood that is a Loan Party, the security interests in the Collateral of any such Loan Party shall remain Guaranty and/or Collateral may be released and retaken in full force and effect and perfected to the same extent as prior to connection with such changeconversion);
(d) (x) Dispositions of inventory or equipment in the ordinary course of business (including on an intercompany basisbasis between the Borrower and its Subsidiaries) and (y) the leasing or subleasing of real property in the ordinary course of business;
(e) (x) Dispositions of surplus, obsolete, used or worn out property or other property (including intellectual property) that, in the reasonable judgment of the Borrowers, is (A) no longer useful in its business (or in the business of any of their respective Subsidiaries) or (B) otherwise economically impracticable to maintain 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 Borrowers reasonably determines are surplus assets;
(f) Dispositions of Cash Equivalents or other assets that were Cash Equivalents when the original Investment was made (in each case, for the fair market value thereof);
(g) Dispositions, mergers, amalgamations, consolidations or conveyances that constitute Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), Permitted Liens, Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix)), Restricted Debt Payments permitted by Section 6.04(b) and Sale and Lease-back Transactions permitted by Section 6.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition (in a single transaction or in a series of related transactions) with a purchase price in an aggregate amount in excess of the greater of $2,500,000 and 2.5% of Consolidated Adjusted EBITDA of the Borrowers, as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(b) or (c), as applicable, at least 75.0% of the consideration for such 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 (I) that are contractually subordinated in right of payment or security to the Obligations or (II) that are owed to Holdings, the Borrowers or a Subsidiary) of the Borrowers or any applicable 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 Borrowers and their respective Subsidiaries shall have been validly released by all relevant creditors in writing, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (y) any Securities received by the Borrowers or any Subsidiary from such transferee that are converted by such Person into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $5,000,000 and 0.35% of Consolidated Total Assets of the Borrowers, determined at the time of such Disposition (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(b) or (c), as applicable, in each case, shall be deemed to be Cash); provided, further, that (i) (A) on the date of the execution the agreement governing such Disposition, no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) shall then exist or would result therefrom and (B) immediately prior to and after giving effect to the consummation of such Disposition, no Event of Default shall then exist or would result therefrom and (ii) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.12(b)(iii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of Investments in joint ventures or any Subsidiary that is not a Wholly-Owned Subsidiary to the extent required by, or made pursuant to, buy/sell arrangements between the joint venture or similar parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions, discounting or forgiveness of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicenses, which (i) in the good faith determination of the Borrower do not materially interfere with the business of the Borrowers and their respective Subsidiaries or (ii) relate to closed branches or manufacturing facilities or the discontinuation of any product or service line;
(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 (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to casualty, foreclosure, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Disposition or consignment, license, sublicense, conveyance of equipment, inventory or other assets (including fee and leasehold interests in real property) with respect to facilities that are not in use, held for sale or closed; provided that the Net Proceeds of any such Disposition of fee owned Real Estate Assets shall be applied and/or reinvested as (and to the extent) required by Section 2.12(b)(iii);
(p) Dispositions in connection with the Transactions that are contemplated by the Acquisition Agreement;
(q) Dispositions of non-core assets acquired in connection with an acquisition permitted hereunder and sales of Real Estate Assets acquired in an acquisition permitted hereunder which, within 90 days of the date of the acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of the Borrowers or any of their respective Subsidiaries or any of their respective businesses; provided that (i) the Net Proceeds received in connection with any such Dispositions shall be applied and/or reinvested as (and to the extent) required by Section 2.12(b)(iii) and (ii) no Event of Default shall have occurred and be continuing on the date on which the definitive agreement governing the relevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as the exchange or swap is made for fair value (as reasonably determined by the Borrowers) for like property or assets; provided that (i) within 90 days of any such exchange or swap, in the case of any Loan Party and to the extent such property does not constitute an “Excluded Asset” (as defined in the Pledge and Security Agreement), the Administrative Agent has a perfected Lien having the same priority as any Lien held on the Real Estate Assets so exchanged or 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 2.12(b)(iii);
(s) [Reserved];
(i) Dispositions, licensing, sublicensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrowers or any Subsidiary in the ordinary course of business, and (ii) the Disposition, abandonment, cancellation or lapse of IP Rights, or any issuances or registrations, or applications for issuances or registrations, of any IP Rights, which, in the reasonable good faith determination of the Borrowers are not material to the business and operations of the Borrowers and/or their respective Subsidiaries;
(u) terminations of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sale of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [Reserved];
(x) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(y) Dispositions of assets in connection with the closing or sale of an office in the ordinary course of business of the Borrowers and their respective Subsidiaries, which consist of leasehold interests in the premises of such office, the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such office; provided that as to each and all such sales and closings, (i) (x) on the date on which the agreement governing such Disposition is executed, no Event of Default shall then exist or result therefrom and (y) immediately prior to and after giving effect to the consummation of such Disposition, no Event of Default under Section 7.01(a), (f) or (g) shall then exist or result therefrom and (ii) such sale shall be on commercially reasonable prices and terms in a bona fide arm’s-length transaction;
(z) the sale of motor vehicles, aircraft and information technology equipment purchased at the end of an operating lease and resold thereafter; and
(aa) Dispositions of letters of credit and/or bank guarantees (and/or the rights thereunder) to banks or other financial institutions in the ordinary course of business in exchange for Cash and/or Cash Equivalents. To the extent any Collateral is Disposed of as expressly permitted by this Section 6.07 to any Person other than a Loan Party, the Liens on such Collateral created by the Loan Documents shall be automatically released in accordance with Section 8.10(a)(i)(y) and the applicable provisions of the Pledge and Security Agreement, and the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing. For purposes of determining compliance at any time with this Section 6.07, the Borrowers, in their sole discretion, from time to time, may classify or reclassify such transaction or item (or portion thereof) in accordance with Section 1.03.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. The Borrowers shall notNo Loan Party shall, nor shall they it permit any of their respective its Subsidiaries to, enter into any transaction of merger, consolidation merger or amalgamationconsolidation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or make any Disposition having a fair market value in excess of $1,000,000€10,000,000, in a single transaction or in a related series of transactions, except:
(a) (i) any Each Borrower may be merged, consolidated or amalgamated with or into any Person (including another Borrower)Person, or convey, sell, transfer or otherwise dispose of all or substantially all of its business, assets or property to another Person (including another Borrower), or be converted into another Person; provided that a such Borrower shall be the continuing or surviving Person and (ii) any Subsidiary of any Borrower may be merged or consolidated or amalgamated with or into, converted into, or convey, sell, transfer or otherwise dispose of all or substantially all of its business, assets or property to, any Borrower, such Borrower or any other Subsidiary or any other Personof Parent; provided that (x) in the case of such a transaction involving any Borrower, such Borrower shall be the continuing or surviving Person, (y) in the case of such a transaction involving any Subsidiary GuarantorGuarantor (other than any Borrower), either (A) a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume all of the obligations of such Subsidiary Guarantor under this Agreement and the other Loan Documents to which such Subsidiary Guarantor is a part of pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent or (B) such transaction shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof) 7.06, and (z) in the case of such a transaction involving a Subsidiary, either (A) a Subsidiary shall be the continuing or surviving Person or (B) such transaction shall be treated as an Investment and shall comply with Section 6.06 7.06 (other than in reliance on clause (j) thereofSection 7.06(j));
(b) Dispositions (including of Capital Stock) among any Parent Company, the Borrowers Borrowers, and their respective Subsidiaries (upon voluntary liquidation or otherwise); provided that any such Disposition by a Loan Party to a Person that is not a Loan Party shall be (i) for fair market value (as reasonably determined by such Person) and at least 75.0% of the consideration for such Disposition consists of Cash or Cash Equivalents or Designated Non-Cash Consideration at the time of such Disposition (provided, that, any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (b) that is at that time outstanding, not in excess of the greater of $5,000,000 and 0.35% of Consolidated Total Assets of the Borrowers, determined at the time of such Disposition (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(b) or (c), as applicable, in each case, shall be deemed to be Cash) or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 7.06 (other than in reliance on clause (j) thereofSection 7.06(j));
(i) the liquidation or dissolution of any Subsidiary (other than Netsmart Technologies) or change in form of entity of any Borrower or any Subsidiary if the Borrowers determine Borrower Representative determines in good faith that such liquidation, dissolution or change in form, as applicable, form (x) is in the best interests of the Borrowers and (y) is not materially disadvantageous to the Lenders and, in the case of a liquidation or dissolution of any such Subsidiary either the Borrowers any Borrower or a 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 6.06 7.06 (other than Section 6.06(j7.06(j)) and (ii) any merger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) a Disposition otherwise permitted under this Section 6.07 7.07 (other than clause (aSection 7.07(a), clause (b) or this clause (c)) or (B) an Investment permitted under Section 6.06 7.06 (other than in reliance on clause (j) thereofSection 7.06(j)); provided, further, in the case of a change in the form of entity of any Borrower or any Subsidiary that is a Loan Party, the security interests in the Collateral of such Loan Party shall remain in full force and effect and perfected to the same extent as prior to such change;
(d) (x) Dispositions 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) Dispositions of (x) Dispositions of surplus, obsolete, used or worn out property or other property (including intellectual property) that, in the reasonable judgment of the BorrowersBorrower Representative, is (A) no longer useful in its business (or in the business of any of their respective its Subsidiaries) or (B) otherwise economically impracticable to maintain 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 Borrowers Borrower Representative reasonably determines are surplus assets;
(f) Dispositions of Cash Equivalents or other assets that were Cash Equivalents when the original Investment was made (in each case, for the fair market value thereof);
(g) Dispositions, mergers, amalgamations, consolidations or conveyances that constitute Investments permitted pursuant to Section 6.06 7.06 (other than Section 6.06(j7.06(j)), Permitted Liens, Restricted Payments permitted by Section 6.04(a7.04(a) (other than Section 6.04(a)(ix7.04(a)(ix)), Restricted Debt Payments permitted by Section 6.04(b) and Sale and Lease-back Back Transactions permitted by Section 6.087.08;
(h) Dispositions for fair market value; provided that with respect to any such Disposition (in a single transaction or in a series of related transactions) with a purchase price in an aggregate amount in excess of the greater of $2,500,000 (i) €20,000,000 and 2.5(ii) 1.5% of Consolidated Adjusted EBITDA Total Assets of the BorrowersParent and its Subsidiaries, as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(b6.01(b) or (c), as applicable, at least 75.0% of the consideration for such 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 (I) that are contractually subordinated in right of payment or security to the Obligations or (II) that are owed to Holdings, the Borrowers any Borrower or a any Subsidiary) of the Borrowers any Borrower or any applicable 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 Borrowers such Borrower and their respective Subsidiaries such Subsidiary shall have been validly released by all relevant creditors in writing, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (y) any Securities received by the Borrowers any Borrower or any Subsidiary from such transferee that are converted by such Person into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of the greater of $5,000,000 (i) €25,000,000 and 0.35(ii) 2.0% of Consolidated Total Assets of the BorrowersParent and its Subsidiaries, determined at the time of such Disposition (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(b6.01(b) or (c), as applicable, in each case, shall be deemed to be Cash); provided, further, that (i) (A) on the date of the execution the agreement governing such Disposition, no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) shall then exist or would result therefrom and (B) immediately prior to and after giving effect to the consummation of such Disposition, no Event of Default shall then exist or would result therefrom have occurred that is continuing on the date on which the agreement governing such Disposition is executed and (ii) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.12(b)(iii2.05(b)(ii);
(i) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(j) Dispositions of Investments in joint ventures or any Subsidiary that is not a Wholly-Owned Subsidiary to the extent required by, or made pursuant to, buy/sell arrangements between the joint venture or similar parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions, discounting or forgiveness of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof;
(l) Dispositions and/or terminations of leases, subleases, licenses or sublicensessublicenses (including the provision of software under an open source license), which (i) in the good faith determination of the Borrower do not materially interfere with the business of the Borrowers any Borrower and their respective any Subsidiaries or (ii) relate to closed branches or manufacturing facilities or the discontinuation of any product or service line;
(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 (including in tort) in the ordinary course of business;
(n) Dispositions of property subject to casualty, foreclosure, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(o) Disposition or consignment, license, sublicense, conveyance of equipment, inventory or other assets (including fee and leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed; provided that the Net Proceeds of any such Disposition of fee owned Real Estate Assets shall be applied and/or reinvested as (and to the extent) required by Section 2.12(b)(iii2.05(b)(ii) (with any Net Proceeds of Term Loan Priority Collateral to be held in a Term Proceeds Account pending application for such purpose if any Default then exists);
(p) Dispositions in connection with the Transactions that are contemplated by the Acquisition Agreement[reserved];
(q) Dispositions of non-core assets acquired in connection with an acquisition permitted hereunder and sales of Real Estate Assets acquired in an acquisition permitted hereunder which, within 90 days of the date of the acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of the Borrowers any Borrower or any of their respective its Subsidiaries or any of their respective businesses; provided that (i) the Net Proceeds received in connection with any such Dispositions shall be applied and/or reinvested as (and to the extent) required by Section 2.12(b)(iii2.05(b)(ii) and (ii) no Event of Default shall have occurred and be continuing on the date on which the definitive agreement governing the relevant Disposition is executed;
(r) exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of property or assets so long as the exchange or swap is made for fair value (as reasonably determined by the BorrowersBorrower Representative) for like property or assets; provided that (i) within 90 days of any such exchange or swap, in the case of any Loan Party and to the extent such property does not constitute an “Excluded AssetProperty” (as defined in the Pledge and Security Agreement), the Administrative Agent Collateral Trustee has a perfected Lien having the same priority as any Lien held on the Real Estate Assets so exchanged or 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 2.12(b)(iii2.05 (b)(ii);
(s) [Reserved]other Dispositions for fair market value in an aggregate amount since the Closing Date of not more than the greater of €50,000,000 and 4.0% of Consolidated Total Assets of Parent and its Subsidiaries, as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01(b) or (c), as applicable;
(i) Dispositions, licensing, sublicensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrowers any Borrower or any Subsidiary in the ordinary course of business, and (ii) the Disposition, abandonment, cancellation or lapse of IP Rights, or any issuances or registrations, or applications for issuances or registrations, of any IP Rights, which, in the reasonable good faith determination of the Borrowers such Borrower are not material to the business and operations conduct of the Borrowers business of such Borrower and/or their respective its Subsidiaries, or are no longer economical to maintain in light of its use;
(u) terminations of Derivative Transactions;
(v) Dispositions of Capital Stock of, or sale of Indebtedness or other Securities of, Unrestricted Subsidiaries;
(w) [Reserved]Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, any Borrower or any Subsidiary;
(x) any merger, consolidation, Disposition or conveyance the sole purpose Dispositions of which is U.S. RPA Assets pursuant to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. or (ii) any Foreign Subsidiary in the U.S. or any other jurisdictionReceivables Purchase Facility;
(y) Dispositions of assets in connection with the closing or sale of an office in the ordinary course of business of the Borrowers and their respective the Subsidiaries, which consist of leasehold interests in the premises of such office, the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such office; provided that as to each and all such sales and closings, (i) (x) on the date on which the agreement governing such Disposition is executed, no Event of Default shall then exist or result therefrom and (y) immediately prior to and after giving effect to the consummation of such Disposition, no Event of Default under Section 7.01(a), (f) or (g) shall then exist or result therefrom and (ii) such sale shall be on commercially reasonable prices and terms in a bona fide arm’s-length transaction;
(z) the sale of motor vehicles, aircraft vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter; and;
(aa) Dispositions of letters of credit and/or bank guarantees (and/or the rights thereunder) to banks or other financial institutions in the ordinary course of business in exchange for Cash and/or Cash Equivalents; and
(bb) so long as a Borrower or a Subsidiary of a Borrower receives at least Fair Market Value therefor (taking into account any Securitization Seller’s Retained Interest), any sale of Securitization Assets in connection with a Permitted Securitization or sale of Factoring Assets in connection with a Permitted Factoring Arrangement. To the extent any Collateral is Disposed of as expressly permitted by this Section 6.07 7.07 to any Person other than a Loan Party, such Collateral shall automatically be sold free and clear of the Liens on such Collateral created by the Loan Documents shall be automatically released in accordance with Section 8.10(a)(i)(y) and the applicable provisions of the Pledge and Security AgreementDocuments, and the Administrative Agent Collateral Trustee shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing. For purposes of determining compliance at any time with this Section 6.07, the Borrowers, in their sole discretion, from time to time, may classify or reclassify such transaction or item (or portion thereof) each case in accordance with Section 1.03the Intercreditor Agreement.
Appears in 1 contract
