Mergers, Consolidations, Amalgamations, Sales of Assets and Acquisitions. Merge into, or consolidate or amalgamate with, any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, license, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any part of its assets, or issue, sell, transfer or otherwise dispose of any Equity Interests of any Restricted Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other Person or any division, unit or business of any other Person, except that this Section 6.05 will not prohibit: (1) if at the time thereof and immediately after giving effect thereto no Event of Default has occurred and is continuing or would result therefrom: (a) the merger, consolidation or amalgamation of any Restricted Subsidiary into (or with) any Borrower; provided that (i) such Borrower shall be the survivor or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, Canada, Germany, Luxembourg or England & Wales and (B) the Successor Borrower shall expressly assume all the obligations of the applicable Borrower under this Agreement and the other Loan Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent; provided, further, that in the case of the US Borrower, any Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia; (b) the merger, consolidation or amalgamation of any Restricted Subsidiary into or with any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Loan Party; and, in the case of each of the foregoing clauses (a) and (b), no Person other than a Borrower or a Subsidiary Loan Party receives any consideration; (c) the merger, consolidation or amalgamation of any Restricted Subsidiary that is not a Loan Party into or with any other Restricted Subsidiary that is not a Loan Party; (d) any transfer of inventory among Holdings and its Restricted Subsidiaries or between Restricted Subsidiaries and any other transfer of property or assets among Holdings and its Restricted Subsidiaries or between Restricted Subsidiaries, in each case, in the ordinary course of business; (e) the liquidation or dissolution or change in form of entity of any Restricted Subsidiary Holdings if a Responsible Officer of Holdings determines in good faith that such liquidation, dissolution or change in form is in the best interests of Holdings and is not materially disadvantageous to the Lenders; or (f) the merger, consolidation or amalgamation of any Restricted Subsidiary with or into any other Person in order to effect a Permitted Investment ; (g) the merger, consolidation or amalgamation of any Borrower or any Restricted Subsidiary into (or with) Holdings; provided that (1) Holdings shall be the continuing or surviving Person or (2) if the Person formed by or surviving any such merger, amalgamation or consolidation is not Holdings or is a Person into which Holdings has been liquidated (any such Person, the “Successor Holdings”) (A) the Successor Holdings shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, Canada, Germany, Luxembourg or England & Wales and (B) the Successor Holdings shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (C) the Successor Holdings shall pledge 100% of the Equity Interests of the Borrowers to the Collateral Agent as Collateral to secure the Obligations in form reasonably satisfactory to the Collateral Agent; (2) any sale, transfer or other disposition if: (a) the Net Cash Proceeds therefrom are to be applied in accordance with Section 2.08(1); (b) at least 75% of the consideration therefor is in the form of cash and Cash Equivalents; and (c) such sale, transfer or disposition is made for fair market value (as determined by a Responsible Officer of Holdings in good faith); provided that each of the following items will be deemed to be cash for purposes of this Section 6.05(2): (i) any liabilities of Holdings or the Restricted Subsidiaries (as shown on the most recent Required Financial Statements or in the notes thereto), other than liabilities that are by their terms subordinated in right of payment to the Obligations, that are assumed by the transferee with respect to the applicable disposition and for which Holdings and the Restricted Subsidiaries have been validly released by all applicable creditors in writing; (ii) any securities received by Holdings or any Restricted Subsidiary from such transferee that are converted by Holdings or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of the applicable disposition; and (iii) any Designated Non-Cash Consideration received in respect of such disposition; provided that the aggregate fair market value of all such Designated Non-Cash Consideration, as determined by a Responsible Officer of Holdings in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is then outstanding, does not exceed the greater of (A) $50 million and (B) 2.0% of Consolidated Total Assets as of the date any such Designated Non-Cash Consideration is received, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value; (a) the purchase and sale of inventory in the ordinary course of business, (b) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business, (c) the sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business or (d) the disposition of Cash Equivalents (or Investments that were Cash Equivalents when made); (4) [reserved]; (5) Investments permitted by Section 6.04 (including any Permitted Acquisition or merger, consolidation or amalgamation in order to effect a Permitted Acquisition), provided, that, following any such merger, consolidation or amalgamation involving Holdings or any Borrower, Holdings, a Successor Holdings, a Borrower or a Successor Borrower is the surviving Person; (6) Permitted Liens; (7) Restricted Payments permitted by Section 6.06; (8) the sale of (i) defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction and (ii) accounts receivable and related assets in connection with a Qualified Receivables Financing; (9) leases, non-exclusive licenses, or subleases or sublicenses of any real or personal property (including Intellectual Property Rights) in the ordinary course of business; (10) sales, leases or other dispositions of inventory of Holdings or any Restricted Subsidiary determined by the management of Holdings to be no longer useful or necessary in the operation of the business of Holdings or such Restricted Subsidiary; (11) acquisitions and purchases made with Below Threshold Asset Sale Proceeds; (12) to the extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by Holdings or any Restricted Subsidiary that is not in contravention of Section 6.08; provided that to the extent the property being transferred constitutes Term Priority Collateral, such replacement property will constitute Term Priority Collateral; (13) any sale, transfer or other disposition, in a single transaction or a series of related transactions, of any asset or assets having a fair market value, as determined by a Responsible Officer of Holdings in good faith, of not more than $5 million; (14) the lapse, abandonment or discontinuance of the use or maintenance of any Intellectual Property Rights if previously determined by the Borrower or any Restricted Subsidiary in its reasonable business judgment that such lapse, abandonment or discontinuance is desirable in the conduct of its business; and
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Samples: Term Loan Credit Agreement (Venator Materials PLC), Term Loan Credit Agreement (Venator Materials PLC)
Mergers, Consolidations, Amalgamations, Sales of Assets and Acquisitions. Merge into, or consolidate or amalgamate with, any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, license, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any part of its assets, or issue, sell, transfer or otherwise dispose of any Equity Interests of any Restricted Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other Person or any division, unit or business of any other Person, except that this Section 6.05 will not prohibit:
(1) if at the time thereof and immediately after giving effect thereto no Event of Default has occurred and is continuing or would result therefrom:
(a) the merger, consolidation or amalgamation of any Restricted Subsidiary into (or with) any Borrower; provided that (i) such Borrower shall be the survivor or (ii) if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, Canada, Germany, Luxembourg Columbia or England & Wales a Specified Foreign Jurisdiction and (B) the Successor Borrower shall expressly assume all the obligations of the applicable Borrower under this Agreement and the other Loan Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent; provided, further, that in the case of the US Borrower, any Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia.;
(b) the merger, consolidation or amalgamation of any Restricted Subsidiary into or with any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Loan Party; and, in the case of each of the foregoing clauses (a) and (b), no Person other than a any Borrower or a Subsidiary Loan Party receives any consideration;
(c) the merger, consolidation or amalgamation of any Restricted Subsidiary that is not a Loan Party into or with any other Restricted Subsidiary that is not a Loan Party;
(d) any transfer of inventory Inventory among Holdings and its Restricted Subsidiaries or between Restricted Subsidiaries and any other transfer of property or assets among Holdings and its Restricted Subsidiaries or between Restricted Subsidiaries, in each case, in the ordinary course of business;
(e) the liquidation or dissolution or change in form of entity of any Restricted Subsidiary of Holdings if a Responsible Officer of Holdings determines in good faith that such liquidation, dissolution or change in form is in the best interests of Holdings and is not materially disadvantageous to the Lenders; or;
(f) the merger, consolidation or amalgamation of any Restricted Subsidiary with or into any other Person in order to effect a Permitted Investment ;Investment; or
(g) the merger, consolidation or amalgamation of any Borrower or any Restricted Subsidiary into (or with) Holdings; provided that (1) Holdings shall be the continuing or surviving Person or (2) if the Person formed by or surviving any such merger, amalgamation or consolidation is not Holdings or is a Person into which Holdings has been liquidated (any such Person, the “Successor Holdings”)
) (A) the Successor Holdings shall be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia, Canada, Germany, Luxembourg Columbia or England & Wales a Specified Foreign Jurisdiction and (B) the Successor Holdings shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (C) the Successor Holdings shall pledge 100% of the Equity Interests of the Borrowers U.S. Parent and the Lux Parent to the Collateral Agent as Collateral to secure the Obligations in form reasonably satisfactory to the Collateral Agent;
(2) any sale, transfer or other disposition if:
(a) the Net Cash Proceeds therefrom are to be applied in accordance with Section 2.08(1);
(b) at least 75% of the consideration therefor is in the form of cash and Cash Equivalents; and
(cb) such sale, transfer or disposition is made for fair market value (as determined by a Responsible Officer of Holdings in good faith); provided that each of the following items will be deemed to be cash for purposes of this Section 6.05(2):
(i) any liabilities of Holdings or the Restricted Subsidiaries (as shown on the most recent Required Financial Statements or in the notes thereto), other than liabilities that are by their terms subordinated in right of payment to the Obligations, that are assumed by the transferee with respect to the applicable disposition and for which Holdings and the Restricted Subsidiaries have been validly released by all applicable creditors in writing;
(ii) any securities received by Holdings or any Restricted Subsidiary from such transferee that are converted by Holdings or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of the applicable disposition; and
(iii) any Designated Non-Cash Consideration received in respect of such disposition; provided that the aggregate fair market value of all such Designated Non-Cash Consideration, as determined by a Responsible Officer of Holdings in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is then outstanding, does not exceed the greater of (A) $50 million and (B) 2.0% of Consolidated Total Assets as of the date any such Designated Non-Cash Consideration is received, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value;
(a) the purchase and sale of inventory Inventory in the ordinary course of business, (b) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business, (c) the sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business or (d) the disposition of Cash Equivalents (or Investments that were Cash Equivalents when made);
(4) [reserved];
(5) Investments permitted by Section 6.04 (including any Permitted Acquisition expressly permitted under Section 6.04(38) or merger, consolidation or amalgamation in order to effect such a Permitted AcquisitionAcquisition expressly permitted under Section 6.04(38)), provided, that, following any such merger, consolidation or amalgamation involving Holdings or any Borrower, Holdings, a Successor Holdings, a such Borrower or a Successor Borrower is the surviving Person;
(6) Permitted Liens;
(7) Restricted Payments permitted by Section 6.06;
(8) the sale of (ia) defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction and (iib) accounts receivable and related assets in connection with a Qualified Receivables Financing;
(9) leases, non-exclusive licenses, or subleases or sublicenses of any real or personal property (including Intellectual Property Rights) in the ordinary course of business;
(10) sales, leases or other dispositions of inventory Inventory of Holdings or any Restricted Subsidiary determined by the management of Holdings to be no longer useful or necessary in the operation of the business of Holdings or such Restricted Subsidiary;
(11) acquisitions and purchases made with Below Threshold Asset Sale Proceeds;
(12) to the extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by Holdings or any Restricted Subsidiary that is not in contravention of Section 6.08; provided that to the extent the property being transferred constitutes Term ABL Priority Collateral, such replacement property will constitute Term ABL Priority Collateral;
(13) any sale, transfer or other disposition, in a single transaction or a series of related transactions, of any asset or assets having a fair market value, as determined by a Responsible Officer of Holdings in good faith, of not more than $5 million;
(14) the lapse, abandonment or discontinuance of the use or maintenance of any Intellectual Property Rights if previously determined by the Borrower or any Restricted Subsidiary in its reasonable business judgment that such lapse, abandonment or discontinuance is desirable in the conduct of its business; and;
Appears in 1 contract
Mergers, Consolidations, Amalgamations, Sales of Assets and Acquisitions. Merge into, or consolidate or amalgamate with, any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, license, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any part of its assets, or issue, sell, transfer or otherwise dispose of any Equity Interests of any Restricted Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other Person or any division, unit or business of any other Person, except that this Section 6.05 will not prohibit:
(1) if at the time thereof and immediately after giving effect thereto no Event of Default has occurred and is continuing or would result therefrom:
(a) the merger, consolidation consolidation, amalgamation or amalgamation Division of any Restricted Subsidiary into (or with) any Borrower; provided that (i) such Borrower shall be the survivor or (ii) if the Person formed by or surviving any such merger merger, consolidation, amalgamation or consolidation Division is not the a Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, Canada, Germany, Luxembourg Columbia or England & Wales Canada or any province thereof and (B) the Successor Borrower shall expressly assume all the obligations of the applicable Borrower Borrowers under this Agreement and the other Loan Documents to which such Borrower is the Borrowers are a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent; provided, further, that in the case of the US that, prior to any Person becoming a Successor Borrower, any Successor Borrower the Administrative Agent and the Lenders shall be an entity organized or existing have received all documentation and other information that has been reasonably requested in writing by the Administrative Agent and the Lenders that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the laws PATRIOT Act and the Proceeds of the United States, any state thereof or the District of ColumbiaCrime Act;
(b) the merger, consolidation consolidation, amalgamation or amalgamation Division of any Restricted Subsidiary into (or with with) any Subsidiary Loan Party or Holdings Limited in a transaction in which the surviving or resulting entity is a Subsidiary Loan PartyParty or Holdings Limited; and, in the case of each of the foregoing clauses (a) and (b), no Person other than a any Borrower or a Subsidiary Loan Party receives any consideration;
(c) the merger, consolidation consolidation, amalgamation or amalgamation Division of any Restricted Subsidiary that is not a Loan Party into (or with with) any other Restricted Subsidiary that is not a Loan Party, provided that, in the case of any such merger, consolidation, amalgamation or Division of Holdings Limited into (or with) any other Subsidiary that is not a Loan Party, Holdings Limited shall be the survivor;
(d) any transfer of inventory among Holdings and its Restricted Subsidiaries Inventory or between Restricted Subsidiaries and any other transfer of property or assets among Holdings and its Restricted Subsidiaries or between Restricted Subsidiaries, in each case, in the ordinary course of businessBorrowers;
(e) the liquidation or dissolution or change in form of entity of any Restricted Subsidiary (other than Holdings Limited) if a Responsible Officer of Holdings determines in good faith that such liquidation, dissolution or change in form is in the best interests of Holdings and is not materially disadvantageous to the Lenders; or;
(f) the merger, consolidation or amalgamation of any Restricted Subsidiary with or into any other Person in order to effect a Permitted Investment ;
(g) the merger, consolidation or amalgamation of any Borrower or any Restricted Subsidiary into (or with) Holdings; provided that (1) Holdings shall be the continuing or surviving Person or (2) if the Person formed by or surviving any such merger, amalgamation or consolidation is not Holdings or is a Person into which Holdings has been liquidated (any such Person, the “Successor Holdings”)
(A) the Successor Holdings shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, Canada, Germany, Luxembourg or England & Wales and (B) the Successor Holdings shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (C) the Successor Holdings shall pledge 100% of the Equity Interests of the Borrowers to the Collateral Agent as Collateral to secure the Obligations in form reasonably satisfactory to the Collateral Agent[reserved];
(2) any sale, transfer or other disposition of assets that do not constitute ABL Priority Collateral if:
(a) the Net Cash Proceeds therefrom are to be applied in accordance with Section 2.08(1);
(b) at least 75% of the consideration therefor is in the form of cash and Cash Equivalents; and
(cb) such sale, transfer or disposition is made for fair market value (as determined by a Responsible Officer of Holdings in good faith); provided that each of the following items will be deemed to be cash for purposes of this Section 6.05(2):
(i) any liabilities of Holdings Holdings, any Borrower or the Restricted Subsidiaries any Subsidiary (as shown on the most recent Required Financial Statements or in the notes thereto), other than liabilities that are by their terms subordinated in right of payment to the Obligations, that are assumed by the transferee with respect to the applicable disposition and for which Holdings and the Restricted Subsidiaries have Holdings, such Borrower or such Subsidiary has been validly released by all applicable creditors in writing;; and
(ii) any securities received by Holdings or any Restricted Subsidiary of its Subsidiaries from such transferee that are converted by Holdings or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of the applicable disposition; and
(iii) any Designated Non-Cash Consideration received in respect of such disposition; provided that the aggregate fair market value of all such Designated Non-Cash Consideration, as determined by a Responsible Officer of Holdings in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is then outstanding, does not exceed the greater of (A) $50 million and (B) 2.0% of Consolidated Total Assets as of the date any such Designated Non-Cash Consideration is received, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value;
(a) the purchase and sale of inventory Inventory in the ordinary course of business, (b) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business, (c) the sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business or (d) the disposition of Cash Equivalents (or Investments that were Cash Equivalents when made)Equivalents;
(4) [reserved];
(5) Investments permitted by Section 6.04 (including any Permitted Acquisition or merger, consolidation or amalgamation in order to effect a Permitted Acquisition), ; provided, that, following any such merger, consolidation consolidation, amalgamation or amalgamation Division involving Holdings or any Borrower, Holdings, a Successor Holdings, a such Borrower or a Successor Borrower is the surviving Person;
(6) Permitted Liens;
(7) Restricted Payments permitted by Section 6.06;
(8) the sale or discount, in each case without recourse, of defaulted accounts receivable (iother than Eligible Accounts) defaulted receivables arising in the ordinary course of business and not as part of an accounts receivables financing transaction and (ii) accounts receivable and related assets business, but only in connection with a Qualified Receivables Financingthe compromise or collection thereof;
(9) leases, non-exclusive licenses, or subleases or sublicenses of any real or personal property (including Intellectual Property Rights) in the ordinary course of businessbusiness that do not interfere in any material respect with the business of Holdings, the Borrowers and the Subsidiaries, taken as a whole;
(10) sales, leases or other dispositions of inventory of Holdings or any Restricted Subsidiary determined by the management of Holdings to be no longer useful or necessary in the operation of the business of Holdings or such Restricted Subsidiary[reserved];
(11) acquisitions and purchases made with Below Threshold Asset Sale Proceeds[reserved];
(12) to the extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by Holdings or any Restricted Subsidiary that is not in contravention of Section 6.08; provided that to the extent the property being transferred constitutes Term Priority Collateral, such replacement property will constitute Term Priority Collateral[reserved];
(13) any sale, transfer or other disposition, in a single transaction or a series of related transactions, of any asset or assets that do not constitute ABL Priority Collateral having a fair market value, as determined by a Responsible Officer of Holdings in good faith, of not more than $5 3.5 million;
(14) the lapse, abandonment or discontinuance of the use or maintenance of any Intellectual Property Rights if previously determined by the any Borrower or any Restricted Subsidiary in its reasonable business judgment that such lapse, abandonment or discontinuance is desirable in the conduct of its business; and
(15) the Transactions;
Appears in 1 contract
Mergers, Consolidations, Amalgamations, Sales of Assets and Acquisitions. Merge into, or consolidate or amalgamate with, any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, license, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any part of its assets, or issue, sell, transfer or otherwise dispose of any Equity Interests of any Restricted Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other Person or any division, unit or business of any other Person, except that this Section 6.05 will not prohibit:
(1) if at the time thereof and immediately after giving effect thereto no Event of Default has occurred and is continuing or would result therefrom:
(a) the merger, consolidation consolidation, amalgamation or amalgamation Division of any Restricted Subsidiary into (or with) any Borrower; provided that (i) such Borrower shall be the survivor or (ii) if the Person formed by or surviving any such merger merger, consolidation, amalgamation or consolidation Division is not the a Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, CanadaCanada or any province thereof, Germany, Luxembourg or England & Wales and (B) the Successor Borrower shall expressly assume all the obligations of the applicable Borrower Borrowers under this Agreement and the other Loan Documents to which such Borrower is the Borrowers are a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative AgentAgent and the Required Lenders; provided, further, that prior to any Person becoming a Successor Borrower, the Administrative Agent and the Lenders shall have received all documentation and other information that has been reasonably requested in writing by the Administrative Agent and the Lenders that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act and the Proceeds of Crime Act; provided, further that, in the case of the US U.S. Borrower, any Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia;
(b) the merger, consolidation consolidation, amalgamation or amalgamation Division of any Restricted Subsidiary into (or with with) any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Loan Party; and, in the case of each of the foregoing clauses paragraphs (a) and (b), no Person other than a any Borrower or a Subsidiary Loan Party receives any consideration;
(c) the merger, consolidation consolidation, amalgamation or amalgamation Division of any Restricted Subsidiary that is not a Loan Party into (or with with) any other Restricted Subsidiary that is not a Loan Party;
(d) any transfer of inventory among Holdings and its Restricted Subsidiaries Inventory or between Restricted Subsidiaries and any other transfer of property or assets among Holdings and its Restricted Subsidiaries or between Restricted Subsidiaries, in each case, in from the ordinary course of business;U.S. Borrower to the Lux Borrower; or
(e) the liquidation or dissolution or change in form of entity of any Restricted Subsidiary Holdings if a Responsible Officer of Holdings determines in good faith that such liquidation, dissolution or change in form is in the best interests of Holdings and is not materially disadvantageous to the Lenders; or
(f) the merger, consolidation or amalgamation of any Restricted Subsidiary with or into any other Person in order to effect a Permitted Investment ;
(g) the merger, consolidation or amalgamation of any Borrower or any Restricted Subsidiary into (or with) Holdings; provided that (1) Holdings shall be the continuing or surviving Person or (2) if the Person formed by or surviving any such merger, amalgamation or consolidation is not Holdings or is a Person into which Holdings has been liquidated (any such Person, the “Successor Holdings”)
(A) the Successor Holdings shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, Canada, Germany, Luxembourg or England & Wales and (B) the Successor Holdings shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (C) the Successor Holdings shall pledge 100% of the Equity Interests of the Borrowers to the Collateral Agent as Collateral to secure the Obligations in form reasonably satisfactory to the Collateral Agent;
(2) any sale, transfer or other disposition if:
(a) the Net Cash Proceeds therefrom are to be applied in accordance with Section 2.08(1);
(b) at least 75% of the consideration therefor is in the form of cash and Cash Equivalents; and
(c) such sale, transfer or disposition is made for fair market value (as determined by a Responsible Officer of Holdings in good faith); provided that each of the following items will be deemed to be cash for purposes of this Section 6.05(2):
(i) any liabilities of Holdings or the Restricted its Subsidiaries (as shown on the most recent Required Financial Statements or in the notes thereto), other than liabilities that are by their terms subordinated in right of payment to the Obligations, that are assumed by the transferee with respect to the applicable disposition and for which Holdings and the Restricted each of its Subsidiaries have been validly released by all applicable creditors in writing;; and
(ii) any securities received by Holdings or any Restricted Subsidiary of its Subsidiaries from such transferee that are converted by Holdings or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of the applicable disposition; and
(iii) any Designated Non-Cash Consideration received in respect of such disposition; provided that the aggregate fair market value of all such Designated Non-Cash Consideration, as determined by a Responsible Officer of Holdings in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is then outstanding, does not exceed the greater of (A) $50 million and (B) 2.0% of Consolidated Total Assets as of the date any such Designated Non-Cash Consideration is received, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value;
(a) the purchase and sale of inventory Inventory in the ordinary course of business, (b) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business, (c) the sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business or (d) the disposition of Cash Equivalents (or Investments that were Cash Equivalents when made)Equivalents;
(4) [reserved];
(5) Investments permitted by Section 6.04 (including any Permitted Acquisition or merger, consolidation or amalgamation in order to effect a Permitted Acquisition), 6.04; provided, that, following any such merger, consolidation consolidation, amalgamation or amalgamation Division involving Holdings or any Borrower, Holdings, a Successor Holdings, a such Borrower or a Successor Borrower is the surviving Person;
(6) Permitted Liens;
(7) Restricted Payments permitted by Section 6.06;
(8) the sale of (i) defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction and (ii) accounts receivable and related assets in connection with a Qualified Receivables Financing;
(9) leases, non-exclusive licenses, or subleases or sublicenses of any real or personal property (including Intellectual Property Rights) in the ordinary course of business;
(10) sales, leases or other dispositions of inventory of Holdings or any Restricted Subsidiary determined by the management of Holdings to be no longer useful or necessary in the operation of the business of Holdings or such Restricted Subsidiary;
(11) acquisitions and purchases made with Below Threshold Asset Sale Proceeds;
(12) to the extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by Holdings or any Restricted Subsidiary that is not in contravention of Section 6.08; provided that to the extent the property being transferred constitutes Term Priority Collateral, such replacement property will constitute Term Priority Collateral;
(13) any sale, transfer or other disposition, in a single transaction or a series of related transactions, of any asset or assets having a fair market value, as determined by a Responsible Officer of Holdings in good faith, of not more than $5 million;
(14) the lapse, abandonment or discontinuance of the use or maintenance of any Intellectual Property Rights if previously determined by the Borrower or any Restricted Subsidiary in its reasonable business judgment that such lapse, abandonment or discontinuance is desirable in the conduct of its business; and
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Mergers, Consolidations, Amalgamations, Sales of Assets and Acquisitions. Merge into, or consolidate or amalgamate with, any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, license, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any part of its assets, or issue, sell, transfer or otherwise dispose of any Equity Interests of any Restricted Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other Person or any division, unit or business of any other Person, except that this Section 6.05 will not prohibit:
(1) if at the time thereof and immediately after giving effect thereto no Event of Default has occurred and is continuing or would result therefrom:
(a) the merger, consolidation or amalgamation of any Restricted Subsidiary into (or with) any Borrower; provided that (i) such Borrower shall be the survivor or (ii) if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, Canada, Germany, Luxembourg Columbia or England & Wales a Specified Foreign Jurisdiction (other than France) and (B) the Successor Borrower shall expressly assume all the obligations of the applicable Borrower under this Agreement and the other Loan Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent; provided, further, that in the case of the US that, prior to any Person becoming a Successor Borrower, any Successor Borrower the Administrative Agent shall be an entity organized or existing have received al documentation and other information that has been reasonably requested in writing by the Lenders that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the laws PATRIOT Act and the Proceeds of the United States, any state thereof or the District of ColumbiaCrime Act;
(b) the merger, consolidation or amalgamation of any Restricted Subsidiary into or with any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Loan Party; and, in the case of each of the foregoing clauses (a) and (b), no Person other than a any Borrower or a Subsidiary Loan Party receives any consideration;
(c) the merger, consolidation or amalgamation of any Restricted Subsidiary that is not a Loan Party into or with any other Restricted Subsidiary that is not a Loan Party;
(d) any transfer of inventory Inventory among Holdings and its Restricted Subsidiaries or between Restricted Subsidiaries and any other transfer of property or assets among Holdings and its Restricted Subsidiaries or between Restricted Subsidiaries, in each case, in the ordinary course of business;
(e) the liquidation or dissolution or change in form of entity of any Restricted Subsidiary of Holdings if a Responsible Officer of Holdings determines in good faith that such liquidation, dissolution or change in form is in the best interests of Holdings and is not materially disadvantageous to the Lenders; or;
(f) the merger, consolidation or amalgamation of any Restricted Subsidiary with or into any other Person in order to effect a Permitted Investment ;Investment; or
(g) the merger, consolidation or amalgamation of any Borrower or any Restricted Subsidiary into (or with) Holdings; provided that (1) Holdings shall be the continuing or surviving Person or (2) if the Person formed by or surviving any such merger, amalgamation or consolidation is not Holdings or is a Person into which Holdings has been liquidated (any such Person, the “Successor Holdings”)continuing
(A) the Successor Holdings shall be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia, Canada, Germany, Luxembourg Columbia or England & Wales a Specified Foreign Jurisdiction and (B) the Successor Holdings shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (C) the Successor Holdings shall pledge 100% of the Equity Interests of the Borrowers U.S. Parent and the Lux Parent to the Collateral Agent as Collateral to secure the Obligations in form reasonably satisfactory to the Collateral Agent;
(2) any sale, transfer or other disposition if:
(a) the Net Cash Proceeds therefrom are to be applied in accordance with Section 2.08(1);
(b) at least 75% of the consideration therefor is in the form of cash and Cash Equivalents; and
(cb) such sale, transfer or disposition is made for fair market value (as determined by a Responsible Officer of Holdings in good faith); provided that each of the following items will be deemed to be cash for purposes of this Section 6.05(2):
(i) any liabilities of Holdings or the Restricted Subsidiaries (as shown on the most recent Required Financial Statements or in the notes thereto), other than liabilities that are by their terms subordinated in right of payment to the Obligations, that are assumed by the transferee with respect to the applicable disposition and for which Holdings and the Restricted Subsidiaries have been validly released by all applicable creditors in writing;
(ii) any securities received by Holdings or any Restricted Subsidiary from such transferee that are converted by Holdings or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of the applicable disposition; and
(iii) any Designated Non-Cash Consideration received in respect of such disposition; provided that the aggregate fair market value of all such Designated Non-Cash Consideration, as determined by a Responsible Officer of Holdings in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is then outstanding, does not exceed the greater of (A) $50 million and (B) 2.0% of Consolidated Total Assets as of the date any such Designated Non-Cash Consideration is received, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value;
(3) (a) the purchase and sale of inventory Inventory in the ordinary course of business, (b) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business, (c) the sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business or (d) the disposition of Cash Equivalents (or Investments that were Cash Equivalents when made);
(4) [reserved];
(5) Investments permitted by Section 6.04 (including any Permitted Acquisition expressly permitted under Section 6.04(37) or merger, consolidation or amalgamation in order to effect such a Permitted AcquisitionAcquisition expressly permitted under Section 6.04(37)), provided, that, following any such merger, consolidation or amalgamation involving Holdings or any Borrower, Holdings, a Successor Holdings, a such Borrower or a Successor Borrower is the surviving Person;
(6) Permitted Liens;
(7) Restricted Payments permitted by Section 6.06;
(8) the sale of (i) defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction and (ii) accounts receivable and related assets in connection with a Qualified Receivables Financing;
(9) leases, non-exclusive licenses, or subleases or sublicenses of any real or personal property (including Intellectual Property Rights) in the ordinary course of business;
(10) sales, leases or other dispositions of inventory of Holdings or any Restricted Subsidiary determined by the management of Holdings to be no longer useful or necessary in the operation of the business of Holdings or such Restricted Subsidiary;
(11) acquisitions and purchases made with Below Threshold Asset Sale Proceeds;
(12) to the extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by Holdings or any Restricted Subsidiary that is not in contravention of Section 6.08; provided that to the extent the property being transferred constitutes Term Priority Collateral, such replacement property will constitute Term Priority Collateral;
(13) any sale, transfer or other disposition, in a single transaction or a series of related transactions, of any asset or assets having a fair market value, as determined by a Responsible Officer of Holdings in good faith, of not more than $5 million;
(14) the lapse, abandonment or discontinuance of the use or maintenance of any Intellectual Property Rights if previously determined by the Borrower or any Restricted Subsidiary in its reasonable business judgment that such lapse, abandonment or discontinuance is desirable in the conduct of its business; and
Appears in 1 contract
