Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary, (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) (i) Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section 6.06 and (ii) any Disposition made pursuant to the Merger Agreement; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).

Appears in 7 contracts

Samples: Incremental Assumption and Amendment Agreement (ADT Inc.), Incremental Assumption and Amendment Agreement (ADT Inc.), Incremental Assumption and Amendment Agreement (ADT Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, or the Disposition of any Customer Notes, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any ~~Subsidiary,~~ Subsidiary or (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the ~~Lenders,~~ Lenders or (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.10; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section ~~6.04~~6.07; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b~~) to the extent required thereby~~); (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~corporation; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by business judgment of the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of ~~Securitization~~ Receivables Assets including pursuant to Permitted ~~Securitization~~ Receivables Financings;; and (m) any exchange of assets for services and/or other assets ~~used or useful in a Similar Business~~ of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted ~~hereunder,~~ hereunder and (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~5,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrowervalue; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this clause (m) shall not exceed, in any fiscal year of the Borrower, the greater of $20,000,000 and 3% of the Consolidated Total Assets as at the end of the then most recently ended Test Period, (B) no Default or Event of Default exists or would result therefrom, and (BC) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no Disposition of assets under Section 6.05(d) (to the extent required under Section 6.03(b)) or Section 6.05(g) ~~or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d),~~ shall be permitted unless ~~(i)~~ such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) ~~at least 75%~~ no Disposition of assets under Section 6.05(g) or Section 6.05(d) (to the ~~proceeds of~~ extent required under Section 6.03(b)) shall be permitted unless such Disposition (except to Loan Parties) ~~consist of~~ is for at least 75% cash ~~or Permitted Investments~~consideration; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement5,000,000; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 30,000,000 and ~~0.05 times~~ 4.25% of Consolidated Total Assets as at the ~~EBITDA calculated on a Pro Forma Basis for~~ end of the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).

Appears in 5 contracts

Samples: Incremental Assumption and Amendment Agreement (PlayAGS, Inc.), Incremental Assumption Agreement (PlayAGS, Inc.), Incremental Assumption Agreement (AP Gaming Holdco, Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property by the Borrower or any Subsidiary in the ordinary course of business or consistent with past practice or industry norm or determined in good faith by the Borrower to be no longer used or useful or necessary in the operation of the business of the Borrower or any Subsidiary, (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the ~~Target~~ Company of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party (unless otherwise permitted by Section 6.04) and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) (i) Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section 6.06 and (ii) any Disposition made pursuant to the Merger ~~Agreement~~Agreement or in connection with the Transactions; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section ~~6.05(n~~6.05(o) are otherwise complied with; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of (i) Securitization Assets including pursuant to Permitted Securitization ~~Financings~~Financings and (ii) any other Securitization Assets subject to Liens securing Permitted Securitization Financing; (m) to the extent constituting a Disposition, any termination, settlement or extinguishment of obligations in respect of any Hedging Agreement; (n) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) to the extent the consideration received consists of assets, at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~10,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~18,000,000~~15,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance;; and (no) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $~~20,000,000~~ 15,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $~~250,000,000~~ 50,000,000 and ~~0.10~~ 0.075 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received~~) and~~ ), (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and ~~0.05~~ 0.20 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), (d) the amount of Indebtedness of any Subsidiary that is no longer a Subsidiary as a result of such Asset Sale, to the extent that Holdings, the Borrower and each other Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale and (e) consideration consisting of Indebtedness of the Borrower or a Subsidiary (other than Indebtedness that is subordinated in right of payment to the Loan Obligations) received from persons who are not Holdings, the Borrower or a Subsidiary in connection with the Asset Sale and that is cancelled. For purposes of this Section 6.05, the fair market value of any assets Disposed of by the Borrower or any Subsidiary shall be determined in good faith by the Borrower and may be determined either, at the option of the Borrower, at the time of such Disposition or as of the date of the definitive agreement with respect to such Disposition.

Appears in 5 contracts

Samples: Incremental Assumption Agreement (Rackspace Technology, Inc.), Incremental Assumption Agreement (Rackspace Technology, Inc.), Incremental Assumption and Amendment Agreement (Rackspace Technology, Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any ~~Subsidiary,~~ Subsidiary or (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section ~~6.04~~6.07; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the ~~Subsidiaries~~Subsidiaries (including any Disposition of foreign Intellectual Property rights); (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange of assets for services and/or other assets ~~used or useful in a Similar Business~~ of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~10,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~18,000,000~~20,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance;; and (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) ~~consist~~ consists of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $~~20,000,000~~ 15,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $~~250,000,000~~ 50,000,000 and ~~0.10 times~~ 9% of Consolidated Total Assets as of the ~~EBITDA calculated on a Pro Forma Basis for~~ end of the then most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 75,000,000 and ~~0.05 times~~ 13.50% of Consolidated Total Assets as of the ~~EBITDA calculated on a Pro Forma Basis for~~ end of the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value). Notwithstanding anything to the contrary contained in Section 6.05 above, the Borrower and the Subsidiaries shall not make any Trademark Disposition (whether in one transaction or in a series of related transactions), except for (i) any Trademark Disposition among the Borrower and the Subsidiary Loan Parties, (ii) any Trademark Disposition of any Excluded Trademark and (iii) any Trademark Disposition with the consent of the Required Lenders.

Appears in 4 contracts

Samples: First Lien Credit Agreement (Hostess Brands, Inc.), First Lien Credit Agreement (Hostess Brands, Inc.), First Lien Credit Agreement (Hostess Brands, Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. ~~Merge~~ Wind up, liquidate or dissolve its affairs or enter into any transaction of merger or ~~consolidate with~~ consolidation, enter into any ~~other person~~Asset Sale, or ~~permit~~ otherwise convey, sell, lease or otherwise dispose of (or agree to do any ~~other person to merge into~~ of the foregoing at any future time) all or ~~consolidate with it~~any part of its Property or assets, or ~~Dispose of~~ purchase or otherwise acquire (in one ~~transaction~~ or in a series of related transactions) all or any part of ~~its assets (whether now owned or hereafter acquired)~~the Property, Equity Interests, or ~~Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the~~ assets of any ~~other person~~ Person (or ~~division or line~~ agree to do any of ~~business of a person~~the foregoing at any future time), except ~~that this Section 6.05 shall not prohibit~~that: (a) Capital Expenditures by Borrower and the Subsidiaries shall be permitted; (i) ~~the purchase and Disposition~~ purchases or other acquisitions of inventory, ~~or the sale of receivables pursuant to non-recourse factoring arrangements~~materials, ~~in each case~~ equipment and intangible assets in the ordinary course of business ~~by the Borrower or any Subsidiary~~shall be permitted, (ii) ~~the acquisition~~ subject to Section 2.10(c), Asset Sales of used, worn out, obsolete or ~~lease (pursuant to an operating lease) of~~ surplus Property by any ~~other asset~~ Company in the ordinary course of business by and the ~~Borrower~~ abandonment or ~~any Subsidiary or~~other Asset Sale of Intellectual Property that is, ~~with respect~~ in the reasonable judgment of Borrower, no longer economically practicable to ~~operating leases, otherwise for fair market value on market terms (~~maintain or useful in the conduct of the business of the Companies taken as ~~determined in good faith by the Borrower)~~a whole shall be permitted, (iii) Permitted Asset Sales by all Loan Parties aggregating no more than $25.0 million less any prepayments made pursuant to the ~~Disposition~~ definition of ~~surplus~~Permitted Fixed Asset Exchange shall be permitted, ~~obsolete~~(iv) Asset Sales shall be permitted by any Foreign Subsidiary as long as, ~~damaged~~ individually and in the aggregate, such Assets Sales do not comprise all or ~~worn out equipment or other property~~ substantially all of the Property of any Foreign Subsidiary that is a Relevant Party, (v) Permitted Fixed Asset Exchanges shall be permitted, (vii) sales of Inventory sold in the ordinary course of business by shall be permitted and (viii) sales or discounts, in each case without recourse, of accounts receivable arising in the ~~Borrower or any Subsidiary~~ordinary course of business, ~~(iv) assignments by the Borrower and any Subsidiary~~ but only in connection with ~~insurance arrangements of their rights~~ the compromise or collection thereof shall be permitted; (c) Investments in connection with any such transaction may be made to the extent permitted by Section 6.04; (d) Holdings and ~~remedies under,~~ its Subsidiaries may sell Cash Equivalents and ~~with respect to, the Merger Agreement in respect of any breach~~ marketable securities and use cash for purposes that are not otherwise prohibited by the ~~Target~~ terms of ~~its representations and warranties set forth therein or (v) the Disposition of Permitted Investments~~ this Agreement in the ordinary course of business; (be) ~~if at~~ Borrower and the ~~time thereof~~ Subsidiaries may lease (as lessee or lessor) real or personal Property and ~~immediately after giving effect thereto no Event~~ may guaranty such lease, in each case, in the ordinary course of ~~Default~~ business and in accordance with the applicable Security Documents; (f) the Transactions shall ~~have occurred and~~ be ~~continuing or would result therefrom,~~ permitted as contemplated by the Transaction Documents; (g) Permitted Acquisitions shall be permitted; (i) ~~the merger~~ any Loan Party (other than Holdings, Intermediate Holdings or ~~consolidation of~~ Borrower) may transfer or lease Property to any ~~Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor~~Loan Party, (ii) ~~the merger or consolidation of~~ any ~~Subsidiary with or into any Subsidiary~~ Loan Party in may acquire or lease Property from any Loan Party (other than as a ~~transaction in which~~ result of transfer or lease prohibited by the immediately preceding clause (i)), and (iii) any Loan Party (other than Holdings, Borrower and Intermediary Holdings) may be merged into another Domestic or Canadian Loan Party as long as Borrower, Holdings or Intermediary Holdings (if a party to such transaction) or any other Borrowing Base Guarantor is the surviving corporation of such merger; provided, that, in each case of the foregoing clauses (i), (ii) and (iii), the Lien on and security interest in such Property granted or ~~resulting entity is~~ to be granted in favor of the Collateral Agent under the Security Documents shall be maintained or ~~becomes a~~ created in accordance with the provisions of Section 5.11 or 5.12, as applicable; (i) any Foreign Subsidiary ~~Loan Party and~~may transfer Property or lease to or acquire or lease Property from any Foreign Subsidiary or any Foreign Subsidiary may be merged into another Foreign Subsidiary so long as, in the case of ~~each of clauses (i) and (ii), no person other than the Borrower or~~ any merger involving a ~~Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any~~ Foreign Subsidiary that is ~~not~~ a ~~Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan~~ Relevant Party, ~~(iv)~~ the ~~liquidation or dissolution or change in form~~ surviving corporation of ~~entity of any Subsidiary if the Borrower determines in good faith that~~ such ~~liquidation, dissolution or change in form~~ merger is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise)Relevant Party; provided, that the Lien on and security interest in the Equity Interests of any ~~Dispositions by a Loan Party to a~~ such first-tier Foreign Subsidiary ~~that is not a Subsidiary Loan Party in reliance on this clause (c)~~ shall be ~~made~~ maintained or created in ~~compliance~~ accordance with the provisions of Section ~~6.04~~5.11; (dj) ~~Sale and Lease-Back Transactions permitted by Section 6.03~~any Subsidiary (other than Borrower or any Borrowing Base Guarantor) may dissolve, liquidate or wind up its affairs at any time; provided, that such dissolution, liquidation or winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect; (ek) ~~(i) Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section 6.06 and (ii) any Disposition made pursuant to the Merger Agreement; (f) Dispositions~~ discounts or forgiveness of ~~defaulted~~ account receivables in the ordinary course of business ~~and~~ or in connection with collection or compromise thereof shall be permitted provided the account debtor is not ~~as part of~~ an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”Affiliate; (l) Permitted Liens (to the ~~purchase and Disposition (including by capital contribution~~extent constituting a conveyance of Property) ~~of Securitization Assets including pursuant to Permitted Securitization Financings;~~shall be permitted; and (m) Intermediate Holdings may at any ~~exchange~~ time sell the business conducted by PD Suzhou Holdings and its Subsidiaries by means of ~~assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that~~ (i) ~~at least 90%~~ a sale or series of ~~the consideration received~~ sales by the ~~transferor consists~~ Subsidiaries of ~~assets that will be used in a business~~ PD Suzhou Holdings of all or ~~business activity permitted hereunder~~substantially all of their assets, (ii) ~~in the event~~ a sale or series of ~~a swap with a fair market value (as determined in good faith~~ sales by ~~the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer~~ PD Suzhou Holdings of the ~~Borrower with respect to such fair market value and~~ Equity Interests of its Subsidiaries and/or (iii) ~~in the event of~~ a ~~swap with a fair market value (as determined in good faith~~ sale by ~~the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority~~ Intermediate Holdings of the ~~Board~~ Equity Interests of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to PD Suzhou Holdings. To the extent ~~required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto,~~ the Borrower shall be in Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that Supermajority Lenders waive the provisions of this ~~clause~~ Section 6.05 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 6.05, such Collateral (iiunless sold to a Company) shall ~~not apply to any individual transaction or series~~ be sold free and clear of ~~related transactions involving assets with a fair market value (as determined in good faith~~ the Liens created by the ~~Borrower) of less than $20,000,000 or~~ Security Documents, and the Administrative Agent and the Collateral Agent shall take all actions deemed appropriate in order to ~~other transactions involving assets with a fair market value (as determined in good faith by~~ effect the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value)foregoing.

Appears in 3 contracts

Samples: Credit Agreement (General Cable Corp /De/), Credit Agreement (General Cable Corp /De/), Credit Agreement (General Cable Corp /De/)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, or the Disposition of any Customer Notes, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary, (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the ~~Merger~~ Purchase Agreement in respect of any breach by ~~the Target~~ any Seller of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the ~~Lenders,~~ Lenders or (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.10; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section ~~6.04~~6.07; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b~~) to the extent required thereby~~); (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~corporation; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by business judgment of the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of ~~Securitization~~ Receivables Assets including pursuant to Permitted ~~Securitization~~ Receivables Financings;; and (m) any exchange of assets for services and/or other assets ~~used or useful in a Similar Business~~ of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted ~~hereunder,~~ hereunder and (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~5,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrowervalue; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this clause (m) shall not exceed, in any fiscal year of the Borrower, the greater of $7,000,000 and 3% of the Consolidated Total Assets as at the end of the then most recently ended Test Period, (B) no Default or Event of Default exists or would result therefrom, and (BC) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no Disposition of assets under Section 6.05(d) (to the extent required under Section 6.03(b)) or Section 6.05(g) ~~or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d),~~ shall be permitted unless ~~(i)~~ such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) ~~at least 75%~~ no Disposition of assets under Section 6.05(g) or Section 6.05(d) (to the ~~proceeds of~~ extent permitted pursuant to Section 6.03(b)) shall be permitted unless such Disposition (except to Loan Parties) ~~consist of~~ is for at least 75% cash ~~or Permitted Investments~~consideration; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; 2,500,000 provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 10,000,000 and ~~0.05 times~~ 4.25% of Consolidated Total Assets as at the ~~EBITDA calculated on a Pro Forma Basis for~~ end of the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).

Appears in 3 contracts

Samples: Incremental Assumption Agreement (AP Gaming Holdco, Inc.), First Lien Credit Agreement (AP Gaming Holdco, Inc.), Incremental Assumption Agreement (AP Gaming Holdco, Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary, (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) (i) Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section 6.06 and (ii) any Disposition made pursuant to the Merger Agreement; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance;; and (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).

Appears in 3 contracts

Samples: Incremental Assumption and Amendment Agreement (ADT Inc.), Incremental Assumption and Amendment Agreement (ADT Inc.), First Lien Credit Agreement (ADT, Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge ~~into~~ into, amalgamate with or consolidate with any other ~~person~~Person, or permit any other ~~person~~ Person to merge ~~into~~ into, amalgamate with or consolidate with it, or ~~Dispose~~ sell, transfer, lease or otherwise dispose of (in one transaction or in a series of ~~related~~ transactions) all or any part of its assets (whether now owned or hereafter acquired), or ~~Dispose~~ issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or any Relevant Subsidiary or preferred equity interests of the Borrower or any Relevant Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of ~~related~~ transactions) all or any substantial part of the assets of any other ~~person or division or line of business of a person~~Person, except that this Section ~~6.05~~ shall not prohibit: (a) (i) the purchase and ~~Disposition~~ sale of inventory, or supplies, materials and equipment and the purchase and sale of ~~receivables pursuant to non-recourse factoring arrangements~~rights or licenses or leases of intellectual property, in each case in the ordinary course of business by the Borrower or any ~~Subsidiary~~of its Relevant Subsidiaries, (ii) the ~~acquisition or lease (pursuant to an operating lease)~~ sale of any other asset in the ordinary course of business by the Borrower or any ~~Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower)~~of its Relevant Subsidiaries, (iii) the ~~Disposition~~ sale of surplus, ~~obsolete, damaged~~ obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any ~~Subsidiary,~~ of its Relevant Subsidiaries or (iv) ~~assignments by~~ the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition sale of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be ~~continuing or would result therefrom~~continuing, (i) the merger or consolidation of any Relevant Subsidiary ~~with or~~ of the Borrower into the Borrower in a transaction in which the Borrower is the ~~survivor~~surviving corporation, (ii) the merger or consolidation of any Relevant Subsidiary of the Borrower into or with ~~or into~~ any ~~Subsidiary~~ Loan Party in a transaction in which the surviving or resulting entity is ~~or becomes~~ a ~~Subsidiary~~ Loan Party and, in the case of each of clauses (i) and (ii), no ~~person~~ Person other than the Borrower or a ~~Subsidiary~~ Loan Party receives any ~~consideration (unless otherwise permitted by Section 6.04)~~consideration, (iii) the ~~merger~~ merger, amalgamation or consolidation of any Subsidiary of the Borrower that is not a ~~Subsidiary~~ Loan Party into or with ~~or into~~ any other Subsidiary of the Borrower that is not a ~~Subsidiary~~ Loan Party, (iv) the ~~liquidation~~ liquidation, winding up, or dissolution or change in form of entity of any Relevant Subsidiary of the Borrower if the Borrower determines in good faith that such liquidation, winding up, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the ~~Lenders,~~ Lenders or (v) ~~any Subsidiary may merge or consolidate with any other person~~ the change in ~~order to effect an Investment permitted pursuant to Section 6.04 so long as~~ form of entity of the ~~continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party~~ Borrower if the ~~merging or consolidating Subsidiary was a Loan Party~~ Borrower determines in good faith that such change in form is in the best interests of the Borrower and ~~which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order~~ is not materially disadvantageous to ~~effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~the Lenders; (c) ~~Dispositions~~ sales, transfers, leases or other dispositions to the Borrower or a Subsidiary of the Borrower (upon voluntary liquidation or otherwise); ~~provided,~~ provided that any ~~Dispositions~~ sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary of the Borrower that is not a Loan Party shall be made in compliance with Section 6.07; provided further that the aggregate gross proceeds of any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a ~~Subsidiary~~ Loan Party in reliance on upon this ~~clause~~ paragraph (c) and the aggregate gross proceeds of any or all assets sold, transferred or leased in reliance upon paragraph (g) below shall ~~be made~~ not exceed, in ~~compliance with Section 6.04~~any fiscal year of the Borrower, 5.0% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, ~~Permitted~~ Liens ~~and Restricted Payments~~ permitted by Section ~~6.06~~ 6.02 and ~~(ii) any Disposition made pursuant to the Merger Agreement~~Dividends permitted by Section 6.06; (f) ~~Dispositions~~ the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) sales, transfers, leases or other ~~Dispositions~~ dispositions of ~~assets~~assets not otherwise permitted by this Section 6.05; ~~provided~~provided that the aggregate gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in reliance upon this paragraph (g) and in reliance upon the second proviso to paragraph (c) above shall not exceed, in any fiscal year of the Borrower, 5% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; provided further that the Net Proceeds ~~thereof, if any,~~ thereof are applied in accordance with Section ~~2.11(b) to the extent required thereby~~2.11(c); and provided further that after giving effect thereto, no Default or Event of Default shall have occurred; (h) ~~Permitted Business Acquisitions (including~~ any ~~merger,~~ merger or consolidation ~~or amalgamation~~ in ~~order to effect~~ connection with a Permitted Business Acquisition~~); provided~~, provided that following any such ~~merger,~~ merger or consolidation ~~or amalgamation~~ (i) involving the Borrower, the Borrower is the surviving corporation and (ii) involving a Relevant Subsidiary, the surviving or resulting entity ~~or the requirements of Section 6.05(n) are otherwise complied with~~shall be a Loan Party; (i) ~~leases, licenses~~ licensing and cross-licensing arrangements involving any technology or ~~subleases~~ other intellectual property of the Borrower or ~~sublicenses of~~ any ~~real or personal property~~ Relevant Subsidiary in the ordinary course of business;; and (j) ~~Dispositions~~ abandonment, cancellation or disposition of ~~inventory or Dispositions or abandonment of Intellectual Property~~ any intellectual property of the Borrower ~~and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary~~ in the ~~operation~~ ordinary course of ~~the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant~~ business. Notwithstanding anything to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange of assets for services and/or other assets used or useful contrary contained in ~~a Similar Business of comparable or greater value; provided~~Section 6.05 above, ~~that~~ (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower ~~with respect to such fair market value and (iii) in the event of a swap with a fair market value (~~may, so long as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, ~~any Subsidiary~~ sell, grant or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws otherwise issue Equity Interests to members of ~~the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations~~ management of the Borrower ~~under this Agreement and~~ or any of the ~~other~~ Subsidiaries of the Borrower that are Loan ~~Documents~~ Parties pursuant to ~~a supplement hereto~~ stock option, stock ownership, stock incentive or ~~thereto in form reasonably satisfactory to the Administrative Agent~~similar plans, (3ii) ~~each Guarantor~~no sale, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition transfer or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition disposition of assets ~~under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d),~~ shall be permitted by this Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless ~~(i)~~ such ~~Disposition~~ disposition is ~~for fair market value (as determined in good faith by the Borrower), or if not~~ for fair market value, ~~the shortfall~~ (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a), (d), or (j) of this Section 6.05 unless such disposition is ~~permitted as an Investment under Section 6.04, and (ii)~~ for at least 75% cash consideration and (iv) no sale, transfer or other disposition of ~~the proceeds~~ assets in excess of ~~such Disposition~~ U.S.$5.0 million shall be permitted by paragraph (~~except to Loan Parties~~g) ~~consist of cash or Permitted Investments; provided, that the provisions~~ of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis Section 6.05 unless such disposition is for ~~the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement~~at least 75% cash consideration; ~~provided, further,~~ provided that for purposes of ~~this clause~~ clauses (iiiii) and (iv), ~~each of the following shall be deemed to be cash: (a)~~ the amount of any ~~liabilities~~ secured Indebtedness or other Indebtedness of a Subsidiary of the Borrower that is not a Loan Party (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that ~~are~~ is assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (shall be deemed to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value)be cash.

Appears in 3 contracts

Samples: Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Midstream Partners LP)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the ~~sale of receivables pursuant to~~ non-recourse sale or factoring ~~arrangements~~of receivables that are owned by any Foreign Subsidiary, in each ~~case~~ case, in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary, (iv) ~~assignments~~ the assignment by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the ~~Merger~~ Purchase Agreement in respect of any breach by ~~the Target~~ any Seller of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any ~~consideration (unless otherwise permitted by Section 6.04)~~consideration, (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the ~~Lenders,~~ Lenders or (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a ~~Subsidiary (unless otherwise permitted by Section 6.04)~~Subsidiary, which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of ~~its~~ the Subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.10; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made either (i) on terms that are substantially no less favorable to such Loan Party, as applicable, than would be obtained in ~~compliance~~ a comparable arm’s-length transaction with a person that is not an Affiliate, as determined by the Board of Directors of such Loan Party in good faith or (ii) be counted as an Investment to the extent of any shortfall below fair market value and permitted to the extent permitted by Section ~~6.04~~6.07; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) (i) Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section 6.06 and (ii) any Disposition made pursuant to the ~~Merger~~ Purchase Agreement; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts ~~receivables~~ receivable financing transaction; (g) ~~other~~ Dispositions of ~~assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with~~ assets not otherwise permitted by this Section ~~2.11(b) to the extent required thereby~~6.05; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~entity; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or of Dispositions or abandonment of Intellectual Property of the Borrower and ~~its~~ the Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the ~~Subsidiaries~~Subsidiaries (including any Disposition of foreign Intellectual Property rights); (k) ~~acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”~~[Reserved]; (l~~) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m~~) any exchange of assets for services and/or other assets ~~used or useful in a Similar Business~~ of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~500,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~18,000,000~~5,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower, as applicable; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this clause (l) shall not exceed, in any fiscal year of the Borrower, the greater of $5,000,000 and 0.046 times EBITDAR calculated on a Pro Forma Basis for the then most recently ended Test Period and (B)) no Default or Event of Default exists or would result therefrom; (m) [Reserved]; (n) Dispositions not otherwise permitted by this Section 6.05; provided, that (Bi) the ~~Net Proceeds~~aggregate gross proceeds thereof shall not exceed, ~~if any~~in any fiscal year of the Borrower, ~~thereof are applied~~ the greater of $5,000,000 and 0.046 times EBITDAR calculated on a Pro Forma Basis for the then most recently ended Test Period, as applicable (it being understood that amounts not fully utilized in ~~accordance with Section 2.11(b) to the extent required thereby~~ any fiscal year may be carried forward and utilized in subsequent fiscal years); (Cii) with respect to any ~~exchange~~ Disposition (in a single transaction or a series of related transactions) of assets constituting Collateral for ~~services~~an aggregate consideration in excess of $500,000, ~~immediately after giving effect thereto~~the Borrower shall have delivered a Borrowing Base Certificate to the Administrative Agent in respect of such Disposition; (iii) no Default or Event of Default exists or would result therefrom and (iv) with respect to any Disposition with aggregate gross proceeds (including noncash proceeds) in excess of $5,000,000, the Borrower shall be in compliance with the Financial Performance Covenant on a Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement)Basis; and (o) other Dispositions; provided, that at the time such Disposition is made, the Payment Conditions are satisfied; provided, further, that with respect to any Disposition (in a single transaction or a series of related transactions) of assets constituting Collateral for an aggregate consideration in excess of $500,000, the Borrower shall have delivered a Borrowing Base Certificate to ~~effect~~ the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests Administrative Agent in respect of such ~~Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder~~Disposition. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no Disposition of assets under ~~Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section~~ Sections 6.05(d), (g), (n) and (o) shall be permitted unless ~~(i)~~ such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) ~~at least 75%~~ no Disposition of ~~the proceeds of~~ assets under Sections 6.05(g), (n) and (o) shall be permitted unless such Disposition (except to Loan Parties) ~~consist of~~ is for at least 75% cash ~~or Permitted Investments~~consideration; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $~~20,000,000~~ 2,000,000 or to other transactions involving assets with a fair market value ~~(as determined in good faith by the Borrower)~~ of not more than the greater of $~~250,000,000~~ 5,000,000 and ~~0.10~~ 0.046 times ~~the EBITDA~~ EBITDAR calculated on a Pro Forma Basis for the then most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), with respect to Dispositions of assets each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) ), and (c) any Designated Non-Cash Consideration received by the Borrower or any of ~~its~~ the Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 1,000,000 and ~~0.05~~ 0.09 times ~~the EBITDA~~ EBITDAR calculated on a Pro Forma Basis for the then most recently ended Test Period ~~ended~~ immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).

Appears in 2 contracts

Samples: Asset Based Revolving Credit Agreement (Sun Country Airlines Holdings, Inc.), Asset Based Revolving Credit Agreement (Sun Country Airlines Holdings, Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge ~~into~~ into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) (x) the purchase and Disposition of inventory, or (y) the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any ~~Subsidiary,~~ Subsidiary or (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary into or with ~~or into~~ the Borrower in a transaction in which the Borrower is the survivor, (ii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary into or with ~~or into~~ any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary that is not a Subsidiary Loan Party into or with ~~or into~~ any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the ~~Lenders,~~ Lenders or (v) any Subsidiary may ~~merge~~ merge, consolidate or ~~consolidate~~ amalgamate into or with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the ~~merging~~ merging, consolidating or ~~consolidating~~ amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.10; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made either (i) on terms that are substantially no less favorable to such Loan Party, as applicable, than would be obtained in ~~compliance~~ a comparable arm’s-length transaction with a person that is not an Affiliate, as determined by the Board of Directors of such Loan Party in good faith or (ii) be counted as an Investment to the extent of any shortfall below fair market value and permitted to the extent permitted by Section 6.04; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) ~~Dispositions~~ the Disposition of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) ~~other~~ Dispositions of ~~assets; provided~~assets not otherwise permitted by this Section 6.05 so long as (i) the fair market value of such assets shall not exceed, ~~that~~ in any fiscal year of the ~~Net Proceeds thereof~~Borrower, ~~if any, are applied in accordance with Section 2.11(b)~~ 15.0% of Consolidated Total Assets as of the end of the fiscal quarter ended immediately prior to the ~~extent~~ date of such Disposition for which financial statements have been (or were required ~~thereby~~to be) delivered pursuant to Section 5.04(a) or 5.04(b) and (ii) no Default or Event of Default shall have occurred and be continuing or would result therefrom; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~entity; (i) leases, ~~licenses~~ licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business;; and (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).

Appears in 2 contracts

Samples: Credit Agreement (Sprouts Farmers Market, Inc.), Credit Agreement (Sprouts Farmers Market, Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or ~~Dispose~~ sell, transfer, lease or otherwise dispose of (in one transaction or in a series of ~~related~~ transactions) all or any part of its assets (whether now owned or hereafter acquired) (including, in each case, pursuant to a Delaware LLC Division), or ~~Dispose~~ issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of ~~related~~ transactions) all or any substantial part of the assets of any other person or ~~division~~ any division, unit or ~~line of~~ business of a any person, except that this Section ~~6.05~~ shall not prohibit: (a) (i) the purchase and ~~Disposition of inventory, or the~~ sale of ~~receivables pursuant to non-recourse factoring arrangements, in each case~~ inventory in the ordinary course of business by the Borrower or any Subsidiary and the sale of receivables by any Foreign Subsidiary pursuant to non-recourse factoring arrangements in the ordinary course of business of such Foreign Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any ~~Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower)~~Subsidiary, (iii) the ~~Disposition~~ sale of surplus, ~~obsolete, damaged~~ obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any ~~Subsidiary,~~ Subsidiary or (iv) ~~assignments by~~ the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition sale of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or ~~consolidation~~ Delaware LLC Division of any Subsidiary ~~with or~~ into the Borrower in a transaction in which the Borrower is the survivor, (ii) the ~~merger~~ merger, consolidation or ~~consolidation~~ Delaware LLC Division of any Subsidiary into or with ~~or into~~ any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is ~~or becomes~~ a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) (i) Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section 6.06 and (ii) any Disposition made pursuant to the Merger Agreement; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).consideration,

Appears in 2 contracts

Samples: Second Lien Bridge Credit Agreement, Second Lien Bridge Credit Agreement

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge ~~into~~ into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or ~~Dispose~~ sell, transfer, lease or otherwise dispose of (in one transaction or in a series of ~~related~~ transactions) all or any part of its assets (whether now owned or hereafter acquired), or ~~Dispose~~ issue, sell, transfer or otherwise dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of ~~related~~ transactions) all or any substantial part of the assets of any other ~~person or division or line of business of a~~ person, except that this Section ~~6.05~~ shall not prohibit: (a) (i) the purchase and ~~Disposition~~ sale of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the ~~Disposition~~ sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any ~~Subsidiary,~~ Subsidiary or (iv) ~~assignments by~~ the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein sale or ~~(v) the Disposition~~ disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary into or with ~~or into~~ the Borrower in a transaction in which the Borrower is the survivor, (ii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary into or with ~~or into~~ any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is ~~or becomes~~ a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any ~~consideration (unless otherwise permitted by Section 6.04)~~consideration, (iii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary that is not a Subsidiary Loan Party into or with ~~or into~~ any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the ~~Lenders,~~ Lenders or (v) any Subsidiary may ~~merge~~ merge, consolidate or ~~consolidate~~ amalgamate into or with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a ~~Subsidiary (unless otherwise permitted by Section 6.04)~~Subsidiary, which shall be a Loan Party if the ~~merging~~ merging, consolidating or ~~consolidating~~ amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.10; (c) ~~Dispositions~~ sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any ~~Dispositions~~ sales, transfers, leases or other dispositions by the Borrower or a Subsidiary Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this ~~clause~~ paragraph (c) shall not in the aggregate exceed, (x) in any fiscal year of the Borrower, $500 million and (y) $1,000,000,000 unless, with respect to clause (y) above, no Default or Event of Default exists or would result therefrom and immediately after giving effect to such sales, transfers, leases or other dispositions, the Senior Secured Leverage Ratio on a Pro Forma Basis shall not be ~~made in compliance with Section 6.04~~greater than 4.5 to 1.0; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) ~~Dispositions~~ the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) sales, transfers, leases, licenses or other ~~Dispositions~~ dispositions of ~~assets~~assets not otherwise permitted by this Section 6.05; provided, that (i) no Default or Event of Default exists or would result therefrom, (ii) with respect to any such sale, transfer, lease or other disposition with aggregate gross proceeds (including noncash proceeds) in excess of $250 million, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance, and (iii) the Net Proceeds ~~thereof, if any,~~ thereof are applied in accordance with Section 2.11(b~~) to the extent required thereby~~); (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~corporation; (i) leases, ~~licenses~~ licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) ~~Dispositions~~ sales, leases or other dispositions of inventory ~~or Dispositions or abandonment of Intellectual Property~~ of the Borrower and its Subsidiaries determined ~~in good faith~~ by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of ~~clause~~ paragraph (a) of the definition of “Net Proceeds”; (l) the purchase and ~~Disposition~~ sale or other transfer (including by capital contribution) of ~~Securitization~~ Receivables Assets ~~including~~ pursuant to Permitted ~~Securitization~~ Receivables Financings; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b); (m) any exchange of assets for services and/or other assets ~~used or useful in a Similar Business~~ of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~50 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~18,000,000~~100 million, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) with respect to any such exchange with aggregate gross consideration in excess of $500 million, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance, and (C) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b~~) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance~~); (n) ~~if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom,~~ any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws disposition of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory Real Estate Assets to the ~~Administrative Agent, (3) each Guarantor, unless it is~~ Real Estate Subsidiaries on the ~~other party to such merger or consolidation, shall have by a supplement to~~ Closing Date and dispositions in connection with the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); andPost-Closing CMBS Transaction; (o) any ~~Disposition~~ disposition made pursuant to ~~effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder~~an Operations Management Agreement; ~~provided that~~ and (p) any disposition of Equity Interests of a Subsidiary pursuant to an agreement or other ~~allocation of any~~ obligation with or to a person (other than the Borrower and its Subsidiaries) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (~~including any equity interests~~ having been newly formed in connection with such acquisition), made as part of such ~~Delaware Divided LLC~~ acquisition and in each case comprising all or ~~Delaware Divided LP)~~ a portion of the consideration in ~~connection therewith is otherwise permitted hereunder~~respect of such sale or acquisition. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no ~~Disposition~~ sale, transfer or other disposition of assets ~~under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d),~~ shall be permitted by this Section 6.05 (other than pursuant to paragraph (e), (n) and (o) above and other than sales, transfers, leases, licenses or other dispositions to Loan Parties) unless ~~(i)~~ such ~~Disposition~~ disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section ~~6.04,~~ 6.04 and (ii) no sale, transfer or other disposition of assets in excess of $25 million shall be permitted by paragraph (a), (d) or (g) of this Section 6.05 unless such disposition is for at least 75% ~~of the proceeds of such Disposition (except to Loan Parties) consist of~~ cash ~~or Permitted Investments~~consideration; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of ~~this~~ clause (ii), ~~each of the following shall be deemed to be cash:~~ (a) the amount of any liabilities (as shown on the Borrower’s or ~~such~~ any Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or any Subsidiary of the Borrower (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such ~~assets or are otherwise cancelled in connection with such transaction~~assets, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary of the Borrower from ~~the~~ such transferee that are converted by the Borrower or such Subsidiary of the Borrower into cash within 180 days ~~after~~ of the receipt thereof (to the extent of the cash received~~) and~~ ), (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such ~~Disposition~~ Asset Sale having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this ~~clause~~ paragraph (c) that is at that time outstanding, not to exceed ~~the greater of~~ $~~150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration~~ 500 million (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) and (d) with respect to any lease of assets by the Borrower or a Subsidiary that constitutes a disposition, receipt of lease payments over time on market terms (as determined in good faith by the Borrower) where the payment consideration is at least 75% cash consideration shall, in each case, be deemed to be cash. To the extent any Collateral is sold or disposed of in a transaction expressly permitted by this Section 6.05 to any person other than the Borrower or any Subsidiary Loan Party, such Collateral shall be sold or disposed of free and clear of the Liens created by the Loan Documents (provided that, for the avoidance of doubt, with respect to any disposal consisting of an operating lease or license, the underlying property retained by the Borrower or such Subsidiary Loan Party will not be so released), and the Administrative Agent shall take, and is hereby authorized by each Lender to take, any actions reasonably requested by the Borrower in order to evidence the foregoing.

Appears in 2 contracts

Samples: Amendment Agreement (Caesars Entertainment Operating Company, Inc.), Amendment Agreement (CAESARS ENTERTAINMENT Corp)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other similar property by the Borrower or any Subsidiary in the ordinary course of business or consistent with past practice or industry norm or determined in good faith by the Borrower to be no longer used or useful or necessary in the operation of the business of the Borrower or any Subsidiary, or (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary of the Borrower with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party (or, in the case of any merger or consolidation involving the Borrower, is the Borrower) and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be (x) a Loan Party if the merging or consolidating Subsidiary was a Loan Party and (y) the Borrower if such merger or consolidation involves the Borrower (in each case, unless otherwise permitted by Section 6.04) and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to ~~the Borrower or~~ a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) (i) Investments permitted by Section ~~6.04~~6.04 (other than by reference to this Section 6.05), Permitted Liens and Restricted Payments permitted by Section 6.06 (other than by reference to this Section 6.05) and (ii) any Disposition made pursuant to ~~the Merger Agreement~~any Reorganization; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section ~~2.11(b)~~ 2.11 to the extent required thereby; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, ~~the Borrower~~ such person is the surviving entity or the requirements of Section ~~6.05(n~~6.05(o) are otherwise complied with; (i) leases, licenses or subleases or sublicenses of any real or personal property or Intellectual Property or assignments of the same in the ordinary course of business; provided, that any such license of Intellectual Property does not constitute a Disposition of Material Intellectual Property to an Unrestricted Subsidiary (other than any Securitization Entity in connection with or in contemplation of a Permitted Securitization Financing); (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and ~~its~~ the Subsidiaries determined in good faith ~~by the management of the Borrower~~ to be no longer ~~useful or necessary~~ useful, necessary, otherwise not material in the operation of the business of the Borrower or any of the ~~Subsidiaries~~Subsidiaries or no longer economical to maintain; (k) ~~acquisitions~~ Dispositions in an amount not to exceed the greater of $12,500,000 and ~~purchases made with~~ 0.05 times the ~~proceeds of~~ EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period in the aggregate for all such Dispositions during any ~~Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”~~Fiscal Year; (l) ~~the purchase and Disposition~~ Dispositions (including by capital contribution) of assets to Securitization ~~Assets including pursuant to~~ Entities in connection with any Permitted Securitization ~~Financings~~Financing; (m) to the extent constituting a Disposition, any termination, settlement or extinguishment of obligations in respect of any Hedging Agreement; (n) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that ~~(i)~~ to the extent at least 90% of the consideration received by the transferor consists of assets or services that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that ~~(A)~~ no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (no) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary of the Borrower or any other person (other than Holdings) may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor ~~Borrower~~Company”), (1) the Successor ~~Borrower~~ Company shall be an entity organized or existing under the laws of the United ~~States, any state thereof, the District~~ States of ~~Columbia or any territory thereof,~~ America and (2) the Successor ~~Borrower~~ Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative ~~Agent~~Agent (or, ~~(3) each Guarantor, unless it is~~ at the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor option of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor ~~Borrower shall have delivered~~ Company, new Loan Documents in substantially similar form or such other form reasonably satisfactory to the Administrative ~~Agent~~ Agent); (xp) ~~an officer’s certificate stating~~ Dispositions of the Equity Interests of any Unrestricted Subsidiary; provided, that, except to the extent contemplated under the Existing Securitization Facility as of the Closing Date (and as such Existing Securitization Facility may be further amended, restated, supplemented or otherwise modified from time to time solely to the extent that such ~~merger~~ amendment, restatement, supplement or ~~consolidation does~~ other modification did not ~~violate this Agreement~~ require the consent or direction of any of the Control Party, the Controlling Class Representative or any ~~other Loan Document and~~ Noteholder (yeach, as defined therein) ~~if requested by the Administrative Agent, an opinion of counsel to the effect that such merger~~ thereunder) or ~~consolidation does not violate this Agreement or~~ in any substantially similar provision in any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted forPermitted Securitization Documents, the Borrower ~~under this Agreement~~shall not Dispose of the Equity Interests of any Securitization Entity to any person other than a Guarantor (or any person that will become a Guarantor substantially concurrently with such Disposition); (q) Dispositions in connection with refranchising transactions; and (or) to the extent constituting a Disposition, any ~~Disposition~~ deposit of cash payable to ~~effect the formation of~~ or belonging to any ~~Subsidiary that is a Delaware Divided LLC or Delaware Divided LP~~ Securitization Entity as required by and ~~would otherwise not be prohibited hereunder; provided that~~ in accordance with any ~~disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder~~Permitted Securitization Documents. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (~~b)(y~~y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for at least fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of ~~less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of~~ not more than the greater of $~~250,000,000~~ 25,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test ~~Period in the aggregate for all such transactions during the term of this Agreement~~Period; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received~~) and~~ ), (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 62,500,000 and ~~0.05~~ 0.25 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), (d) the amount of Indebtedness of any Subsidiary that is no longer a Subsidiary as a result of the Asset Sale, to the extent that Holdings, the Borrower and each other Subsidiary are released from any guarantee of payment of such Indebtedness in connection with such Asset Sale and (e) consideration consisting of Indebtedness of the Borrower or a Subsidiary (other than Indebtedness that is subordinated in right of payment to the Loan Obligations) received from persons who are not Holdings, the Borrower or a Subsidiary in connection with the Asset Sale and that is cancelled. For purposes of this Section 6.05, the fair market value of any assets Disposed of by the Borrower or any Subsidiary shall be determined in good faith by the Borrower and may be determined either, at the option of the Borrower, at the time of such Disposition or as of the date of the definitive agreement with respect to such Disposition. Furthermore, any Disposition otherwise permitted under this Section 6.05 will not permit, except to the extent contemplated under the Existing Securitization Facility as of the Closing Date (and as such Existing Securitization Facility may be further amended, restated, supplemented or otherwise modified from time to time solely to the extent that such amendment, restatement, supplement or other modification did not require the consent or direction of any of the Control Party, the Controlling Class Representative or any Noteholder (each, as defined therein) thereunder) or in any substantially similar provision in any other Permitted Securitization Documents, any Disposition by a Loan Party of the Equity Interests of any Securitization Entity to any person other than the Borrower or a Guarantor that remains a Guarantor (or any person that will become a Guarantor substantially concurrently with such Disposition). For purposes of determining compliance with this Section 6.05, (A) a Disposition need not be permitted solely by reference to one category of permitted Disposition (or any portion thereof) described in this Section 6.05 but may be permitted in part under any combination thereof and (B) in the event that a Disposition (or any portion thereof) meets the criteria of one or more of the categories of permitted Disposition (or any portion thereof) described this Section 6.05, the Borrower may, in its sole discretion, classify or reclassify, or later divide, classify or reclassify (as if incurred at such later time) such Disposition (or any portion thereof) in any manner that complies with this Section 6.05 and at the time of such Disposition, classification or reclassification will be entitled to only include the amount and type of such Disposition (or any portion thereof) in one of the above clauses (or any portion thereof) and such Disposition (or any portion thereof) will be treated as being made or existing pursuant to only such clause or clauses (or any portion thereof) without giving pro forma effect to such item (or any portion thereof) when calculating the amount of Dispositions that may be made, classified or reclassified pursuant to any other clause (or portion thereof) at such time.

Appears in 2 contracts

Samples: Credit Agreement (Driven Brands Holdings Inc.), Credit Agreement (Driven Brands Holdings Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or or, in the case of Foreign Subsidiaries, the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by ~~the Borrower~~ Holdings or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by ~~the Borrower~~ Holdings or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the ~~Borrower~~Borrower Representative), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by ~~the Borrower~~ Holdings or any Subsidiary, (iv) assignments by ~~the Borrower~~ Holdings and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the ~~Target~~ Company of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary (other than a Borrower (unless such entity has been designated as no longer being a Borrower in accordance with Section 9.24)) with or into ~~the~~ either Borrower in a transaction in which the applicable Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary (other than a Borrower (unless such entity has been designated as no longer being a Borrower in accordance with Section 9.24)) with or into any ~~Subsidiary~~ Loan Party in a transaction in which the surviving or resulting entity is or becomes a ~~Subsidiary~~ Loan Party and, in the case of each of clauses (i) and (ii), no person other than the ~~Borrower~~ Borrowers or ~~a Subsidiary~~ another Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a ~~Subsidiary~~ Loan Party with or into any other Subsidiary that is not a ~~Subsidiary~~ Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower (unless such entity has been designated as no longer being a Borrower in accordance with Section 9.24)) if the Borrower Representative reasonably determines in good faith that such liquidation, dissolution or change in form is in the best interests of ~~the Borrower~~ Holdings and its Subsidiaries taken as a whole and is not materially disadvantageous to the Lenders, (v) any Subsidiary (other than a Borrower (unless such entity has been designated as no longer being a Borrower in accordance with Section 9.24)) may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary (other than a Borrower (unless such entity has been designated as no longer being a Borrower in accordance with Section 9.24)) may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to ~~the Borrower~~ Holdings or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a ~~Subsidiary~~ Loan Party in reliance on this clause (c) shall be made in compliance with Section ~~6.04~~6.07; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) (i) Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section 6.06 and (ii) any Disposition made pursuant to the Merger Agreement; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the ~~Borrower~~Company, the ~~Borrower~~ Company is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of ~~the Borrower~~ Holdings and its Subsidiaries determined in good faith by the management of ~~the Borrower~~ Holdings to be no longer useful or necessary in the operation of the business of ~~the Borrower~~ Holdings or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets ~~including~~ pursuant to Permitted Securitization Financings, including AR Priority Collateral pursuant to the AR Facility; (m) any exchange of assets for services and/or other assets ~~used or useful in a Similar Business~~ of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the ~~Borrower~~Borrower Representative) in excess of $~~12,000,000~~10,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower Representative with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the ~~Borrower~~Borrower Representative) in excess of $~~18,000,000~~15,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the ~~Borrower~~Company; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, ~~the Borrower~~ Holdings shall be in Pro Forma Compliance;; and (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary (other than a Borrower (unless such entity has been designated as no longer being a Borrower in accordance with Section 9.24)) or any other person may be merged, amalgamated or consolidated with or into ~~the~~ either Borrower, provided that (A) ~~the~~ such Borrower shall be the surviving entity or (B) if the surviving entity is not ~~the~~ such Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of ~~the~~ such Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the ~~Holdings Guarantee and Pledge Agreement or the Subsidiary~~ Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each ~~Subsidiary~~ Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the applicable Borrower under this Agreement); ~~and~~ provided, further, that (oi) giving effect to any ~~Disposition~~ merger, amalgamation or consolidation permitted pursuant to ~~effect~~ this clause (n) could not reasonably be expected to have, individually or in the ~~formation of any Subsidiary that is~~ aggregate, a ~~Delaware Divided LLC or Delaware Divided LP~~ Material Adverse Effect and ~~would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any~~ (ii) assets ~~(including any equity interests~~ of such ~~Delaware Divided LLC~~ successor Borrower to the extent constituting Collateral shall be secured by perfected Liens to the same extent and with the same priority as immediately prior to such merger, amalgamation or ~~Delaware Divided LP) in connection therewith is otherwise permitted hereunder~~consolidation. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the ~~Borrower)~~Borrower Representative) or, or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the ~~Borrower~~Borrower Representative) of less than $~~20,000,000~~ 15,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the ~~Borrower~~Borrower Representative) of not more than the greater of $~~250,000,000~~ 50,000,000 and ~~0.10 times the~~ 30% of Relevant EBITDA ~~calculated on a Pro Forma Basis for the most recently ended Test Period~~ in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on ~~the Borrower’s~~ Holdings’ or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by ~~the Borrower~~ Holdings or such Subsidiary from the transferee that are converted by ~~the Borrower~~ Holdings or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by ~~the Borrower~~ Holdings or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the ~~Borrower~~Borrower Representative), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) ~~that is at that time outstanding~~, not to exceed the greater of $~~150,000,000~~ 50,000,000 and ~~0.05 times~~ 30% of Relevant EBITDA in the ~~EBITDA calculated on a Pro Forma Basis~~ aggregate for all such designations during the ~~Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration~~ term this Agreement (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).

Appears in 2 contracts

Samples: Credit Agreement (Presidio, Inc.), Credit Agreement (Presidio, Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary, (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the ~~Merger~~ Purchase Agreement in respect of any breach by ~~the Target~~ any Seller Party of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the ~~Lenders,~~ Lenders or (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.10; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made either (i) on terms that are substantially no less favorable to such Loan Party, as applicable, than would be obtained in ~~compliance~~ a comparable arm’s-length transaction with a person that is not an Affiliate, as determined by the Board of Directors of such Loan Party in good faith or (ii) be counted as an Investment to the extent of any shortfall below fair market value and permitted to the extent permitted by Section 6.04; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) (i) Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section 6.06 and (ii) any Disposition made pursuant to an Operations Management Agreement or the ~~Merger~~ Purchase Agreement; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) ~~other~~ Dispositions of ~~assets~~assets not otherwise permitted by this Section 6.05; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b~~) to the extent required thereby~~); (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~corporation; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of ~~Securitization~~ Receivables Assets including pursuant to Permitted ~~Securitization~~ Receivables Financings;; and (m) any exchange of assets for services and/or other assets ~~used or useful in a Similar Business~~ of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~10,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~18,000,000~~15,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this clause (m) shall not exceed, in any fiscal year of the Borrower, the greater of $125,000,000 and 5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), (B) no Default or Event of Default exists or would result therefrom, and (BC) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no Disposition of assets under Section 6.05(d) and Section 6.05(g) ~~or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d),~~ shall be permitted unless ~~(i)~~ such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) ~~at least 75%~~ no Disposition of ~~the proceeds of~~ assets under Section 6.05(g) shall be permitted unless such Disposition (except to Loan Parties) ~~consist of~~ is for at least 75% cash ~~or Permitted Investments~~consideration; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $~~20,000,000~~ 10,000,000 or to other transactions involving assets with a fair market value ~~(as determined in good faith by the Borrower)~~ of not more than the greater of $~~250,000,000~~ 75,000,000 and ~~0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period~~ 3% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 100,000,000 and ~~0.05 times~~ 4% of Consolidated Total Assets as of the ~~EBITDA calculated on a Pro Forma Basis for~~ end of the ~~Test Period ended~~ fiscal quarter immediately prior to the receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) (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).

Appears in 2 contracts

Samples: First Lien Credit Agreement (McGraw-Hill Interamericana, Inc.), First Lien Credit Agreement (McGraw-Hill Global Education LLC)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge ~~into~~ into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or ~~Dispose~~ sell, transfer, lease or otherwise dispose of (in one transaction or in a series of ~~related~~ transactions) all or any part of its assets (whether now owned or hereafter acquired), or ~~Dispose~~ issue, sell, transfer or otherwise dispose of any Equity Interests of in any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of ~~related~~ transactions) all or substantially all of the assets of any other ~~person or division or line of business of a~~ person, except that this Section ~~6.05~~ shall not prohibit: (a) (i) the purchase and ~~Disposition~~ sale of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by ~~the~~ any Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by ~~the~~ any Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the applicable Borrower), (iii) the ~~Disposition~~ sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by ~~the~~ any Borrower or any ~~Subsidiary,~~ Subsidiary or (iv) ~~assignments by~~ the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein sale or ~~(v) the Disposition~~ disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Borrower or any Subsidiary into or with ~~or into the~~ any Borrower in a transaction in which ~~the~~ a Borrower is the survivor, (ii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary into or with ~~or into~~ any ~~Subsidiary~~ Loan Party in a transaction in which the surviving or resulting entity is ~~or becomes~~ a ~~Subsidiary~~ Loan Party and, in the case of each of clauses (i) and (ii), no person other than ~~the Borrower or~~ a ~~Subsidiary~~ Loan Party receives any ~~consideration (unless otherwise permitted by Section 6.04)~~consideration, (iii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary that is not a ~~Subsidiary~~ Loan Party into or with ~~or into~~ any other Subsidiary that is not a ~~Subsidiary~~ Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the applicable Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of ~~the~~ such Borrower or its Subsidiaries and is not materially disadvantageous to the ~~Lenders,~~ Lenders or (v) any Subsidiary may ~~merge~~ merge, consolidate or ~~consolidate~~ amalgamate into or with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a ~~Subsidiary (unless otherwise permitted by Section 6.04)~~Subsidiary, which shall be a Loan Party if the ~~merging~~ merging, consolidating or ~~consolidating~~ amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.10; (c) ~~Dispositions~~ sales, transfers, leases or other dispositions to ~~the~~ a Borrower or a Subsidiary (upon voluntary liquidation or otherwise)~~; provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04~~; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section ~~6.04~~6.04 (including any merger, consolidation or amalgamation in order to effect an Investment and any CEOC Event), Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) ~~Dispositions~~ the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) sales, transfers, leases, licenses or other ~~Dispositions~~ dispositions of ~~assets~~assets not otherwise permitted by this Section 6.05; provided, that (i) no Event of Default exists or would result therefrom, (ii) the Net Proceeds ~~thereof, if any,~~ thereof are applied in accordance with Section 2.11(b), (iii) such sale, transfer or other disposition of assets shall be for fair market value (as determined in good faith by the applicable Borrower) or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04 and (iv) no such sale, transfer or other disposition of assets in excess of $50.0 million ($75.0 million from and after the occurrence of a CEOC Event) shall be permitted unless such disposition is for at least 75% cash consideration; provided, that for purposes of this subclause (g)(iv), each of the following shall be deemed to be cash: (A) the amount of any liabilities (as shown on any Borrower’s or any Subsidiary’s most recent balance sheet or in the notes thereto) of any Borrower or any Subsidiary (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (B) any notes or other obligations or other securities or assets received by any Borrower or any Subsidiary from such transferee that are converted by such Borrower or such Subsidiary into cash within 180 days of the receipt thereof (to the extent ~~required thereby;~~of the cash received), (C) any Designated Non-Cash Consideration received by any Borrower or any of its Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the applicable Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this subclause (g)(iv)(C) that is at that time outstanding, not to exceed the greater of $250.0 million ($325.0 million from and after the occurrence of a CEOC Event) and 0.25 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period (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) and (D) with respect to any lease of assets by a Borrower or a Subsidiary that constitutes a disposition, receipt of lease payments over time on market terms (as determined in good faith by the applicable Borrower) where the payment consideration is at least 75% cash consideration. (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving ~~the~~ a Borrower, ~~the~~ a Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~entity; (i) leases, ~~licenses~~ licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) ~~Dispositions~~ sales, leases or other dispositions of inventory or ~~Dispositions~~ sales, licenses, sublicenses or other dispositions or abandonment of ~~Intellectual Property~~ intellectual property of ~~the~~ any Borrower ~~and~~ or any of its Subsidiaries determined ~~in good faith~~ by the management of ~~the~~ such Borrower to be no longer useful or necessary in the operation of the business of ~~the~~ such Borrower or any of ~~the~~ its Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of ~~clause~~ paragraph (a) of the definition of “Net Proceeds”; (l) the purchase and ~~Disposition~~ sale or other transfer (including by capital contribution) of ~~Securitization~~ Receivables Assets ~~including~~ pursuant to Permitted ~~Securitization~~ Receivables Financings; (m) any exchange of assets for ~~services and/or~~ other assets used or useful in a Similar Business that are of comparable or greater ~~value~~value (other than any such exchanges by a Borrower or Subsidiary with a Person that is an Affiliate of any Borrower or Subsidiary); provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, and (ii) in the event of a swap with a fair market value (as determined in good faith by the applicable Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,00025.0 million, such exchange shall have been approved by at least a majority of the Board of Directors of ~~Holdings or~~ the applicable Borrower; provided, further, that (A) no ~~Default or~~ Event of Default exists or would result ~~therefrom,~~ therefrom and (B~~) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C~~) with respect to any such exchange with aggregate gross consideration that has a fair market value (as determined in good faith by the applicable Borrower) in excess of ~~assets for services~~$25.0 million, immediately after giving effect thereto, the ~~Borrower~~ Borrowers shall be in Pro Forma Compliance; (n) ~~if at~~ any disposition, merger, consolidation, amalgamation or dissolution in connection with the ~~time thereof~~ Transactions, the Closing Date Mergers or the CEOC Emergence Restructuring Transactions; (o) any disposition made pursuant to any Master Lease, any Additional Lease, any MLSA or any Operations Management Agreement; (p) (i) the lease, sublease or license of any portion of any project to persons who, either directly or through Affiliates of such persons, intend to operate or manage nightclubs, bars, restaurants, recreation areas, spas, pools, exercise or gym facilities, or entertainment or retail venues or similar or related establishments or facilities within such project and ~~immediately after giving effect thereto~~ (ii) the grant of declarations of covenants, conditions and restrictions and/or easements with respect to common area spaces and similar instruments benefiting such tenants of such leases, subleases and licenses generally and/or entered into connection with any project (collectively, the “Venue Easements,” and together with any such leases, subleases or licenses, collectively the “Venue Documents”); provided that (A) no Event of Default shall ~~have occurred~~ exist and be continuing at the time any such Venue Document is entered into or would occur as a result ~~therefrom~~of entering into such Venue Document, ~~any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or~~ (B) if the ~~surviving entity is not~~ Loan Parties shall be required to maintain control (which may be through required contractual standards) over the ~~Borrower~~ primary aesthetics and standards of service and quality of the business being operated or conducted in connection with any such leased, subleased or licensed space and (C) no Venue Document or operations conducted pursuant thereto would reasonably be expected to materially interfere with, or materially impair or detract from, the operations of the Borrowers and the Subsidiaries; provided further that upon request by any Borrower, the Collateral Agent on behalf of the Secured Parties shall provide the tenant, subtenant or licensee under any Venue Document with a subordination, non-disturbance and attornment agreement substantially in the form of Exhibit K or in such other ~~person~~form as is reasonably satisfactory to the Collateral Agent and the applicable Loan Party; (q) the dedication of space or other dispositions of property in connection with and in furtherance of constructing structures or improvements reasonably related to the development, construction and operation of any project; provided that in each case such dedication or other dispositions are in furtherance of, and do not materially impair or interfere with the operations of the Borrowers and the Subsidiaries; (r) dedications of, or the granting of easements, rights of way, rights of access and/or similar rights, to any Governmental Authority, utility providers, cable or other communication providers and/or other parties providing services or benefits to any project, any Real Property held by the Borrowers or any of the Subsidiaries or the public at large that would not reasonably be expected to interfere in any material respect with the operations of the Borrowers and the Subsidiaries; provided that upon request by any Borrower, the ~~“Successor Borrower”), (1)~~ Administrative Agent shall direct the ~~Successor Borrower shall be an entity organized or existing under the laws~~ Collateral Agent on behalf of the ~~United States~~Secured Parties to subordinate its Mortgage on such Real Property to such easement, ~~any state thereof~~right of way, ~~the District~~ right of ~~Columbia~~ access or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto similar agreement in such form as is reasonably satisfactory to the Administrative ~~Agent,~~ Agent and the applicable Borrower or Subsidiary; (3s) ~~each Guarantor, unless it is the other party to such merger or consolidation, shall have by~~ any disposition of Equity Interests in a ~~supplement to the Holdings Guarantee and Pledge Agreement or the~~ Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to ~~clause~~ an agreement or other obligation with or to a person (3other than the Borrowers and the Subsidiaries) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), ~~(5)~~ made as part of such acquisition and in each ~~mortgagor~~ case comprising all or a portion of ~~a Mortgaged Property, unless it is~~ the ~~other party to~~ consideration in respect of such ~~merger~~ sale or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); andacquisition; (ot) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition dispositions of assets ~~under Section 6.05(g) or, solely~~ that do not constitute Collateral with ~~respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for~~ an aggregate fair market value (as determined in good faith by the applicable Borrower), ) of not more than the greater of $25.0 million ($35.0 million from and after the occurrence of a CEOC Event) and 0.025 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; (u) dispositions of non-core assets acquired in connection with a Permitted Business Acquisition or ~~if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and~~ other Permitted Investment; (iiv) ~~at least 75%~~ other dispositions of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the ~~Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the~~ applicable Borrower) of not more than the greater of $~~250,000,000~~ 25.0 million ($35.0 million from and ~~0.10~~ after the occurrence of a CEOC Event) and 0.025 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test ~~Period in~~ Period; (w) dispositions set forth on Schedule 6.05; (x) subject to the ~~aggregate for all such transactions during the term~~ last paragraph of this ~~Agreement; provided, further, that for purposes of this clause (ii)~~Section 6.05, each of the ~~following~~ Borrowers and the Subsidiaries may enter into any leases, subleases, easements or licenses with respect to any of its Real Property; and (y) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort, or other claims of any kind. Notwithstanding the foregoing provisions of this Section 6.05, subsection (x) above shall be ~~deemed~~ subject to ~~be cash~~the additional provisos that: (a) no Event of Default shall exist and be continuing at the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with time such transaction, lease, sublease, easement or license is entered into, (b) such transaction, lease, sublease, easement or license would not reasonably be expected to materially interfere with, or materially impair or detract from, the operation of the applicable project, and (c) no lease or sublease may provide that a Loan Party subordinate its fee, condominium or leasehold interest to any ~~notes~~ lessee or any party financing any lessee; provided that, upon request by any Borrower, the Administrative Agent shall direct the Collateral Agent on behalf of the Secured Parties to provide the tenant under any such lease or sublease with a subordination, non-disturbance and attornment agreement in such form as is reasonably satisfactory to the Administrative Agent (it being understood and agreed that no such agreement shall be required to be provided unless (A) no Event of Default shall exist and be continuing at such time or would occur as a result thereof and (B) no Material Adverse Effect would result therefrom). To the extent any Collateral is sold or disposed of in a transaction expressly permitted by this Section 6.05 to any person other ~~obligations~~ than any Borrower or ~~other securities~~ any Subsidiary Loan Party, such Collateral shall be sold or ~~assets received~~ disposed of free and clear of the Liens created by the Loan Documents (provided that, for the avoidance of doubt, with respect to any disposal consisting of an operating lease or license, the underlying property retained by such Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the BorrowerLoan Party will not be so released), ~~taken together with all other Designated Non-Cash Consideration received pursuant~~ and the Administrative Agent shall take, and is hereby authorized by each Lender to ~~this clause (c) that is at that time outstanding~~take, ~~not~~ any actions reasonably requested by any Borrower in order to ~~exceed~~ evidence the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value)foregoing.

Appears in 2 contracts

Samples: Incremental Assumption Agreement (Caesars Entertainment, Inc.), Credit Agreement (CAESARS ENTERTAINMENT Corp)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge ~~into~~ into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (ai) (ix) the purchase and Disposition of inventory, or (y) the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any ~~Subsidiary,~~ Subsidiary or (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary into or with ~~or into~~ the Borrower in a transaction in which the Borrower is the survivor, (ii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary into or with ~~or into~~ any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary that is not a Subsidiary Loan Party into or with ~~or into~~ any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the ~~Lenders,~~ Lenders or (v) any Subsidiary may ~~merge~~ merge, consolidate or ~~consolidate~~ amalgamate into or with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the ~~merging~~ merging, consolidating or ~~consolidating~~ amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05;~~5.10; 107 (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); ~~provided,~~ provided that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made either (i) on terms that are substantially no less favorable to such Loan Party, as applicable, than would be obtained in ~~compliance~~ a comparable arm’s-length transaction with a person that is not an Affiliate, as determined by the Board of Directors of such Loan Party in good faith or (ii) be counted as an Investment to the extent of any shortfall below fair market value and permitted to the extent permitted by Section 6.04; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) ~~Dispositions~~ the Disposition of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) ~~other~~ Dispositions of ~~assets; provided~~assets so long as (i) the fair market value of such assets shall not exceed, ~~that~~ in any fiscal year of the ~~Net Proceeds thereof~~Borrower, ~~if any, are applied in accordance with Section 2.11(b~~the greater of $75,000,000 and 15.0% of EBITDA for the most recently ended Test Period and (ii) ~~to the extent required thereby~~no Default or Event of Default shall have occurred and be continuing or would result therefrom; (h) Dispositions of assets so long as (i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default exists) no Event of Default shall have occurred and be continuing or would result therefrom, (ii) the Borrower or the applicable Subsidiary shall have received not less than fair market value (as determined by the Borrower in good faith) for the assets subject thereto and (iii) if the fair market value (as determined by the Borrower in good faith) of the assets subject thereto exceeds $50,000,000, at least 75% of the consideration therefor shall consist of cash and Permitted Investments (for purposes of this clause (iii) the following shall be deemed cash: (A) Indebtedness of the Borrower or any Subsidiary (other than Indebtedness subordinated in right of payment to or secured by liens that are junior to the liens securing the Secured Obligations) assumed by the transferee to the extent the Borrower and its Subsidiaries have been released by the applicable creditors in writing, (B) any securities received by the Borrower or any Subsidiary that are converted by the Borrower or such Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received in the conversion) within 180 days following the closing of such Disposition and (C) Designated Non-Cash Consideration in respect of such Disposition not to exceed the greater of $100,00,000 and 20% of EBITDA for the most recently ended Test Period; (i) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); ~~provided,~~ provided that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~entity; (ij) leases, ~~licenses~~ licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business;; and (jk) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).

Appears in 1 contract

Samples: Credit Agreement (Sprouts Farmers Market, Inc.)

Appears in 1 contract

Samples: Credit Agreement (TII Smart Solutions, Sociedad Anonima)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge ~~into~~ into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or ~~Dispose~~ sell, transfer, lease or otherwise dispose of (in one transaction or in a series of ~~related~~ transactions) all or any part of its assets (whether now owned or hereafter acquired), or ~~Dispose~~ issue, sell, transfer or otherwise dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of ~~related~~ transactions) all or any substantial part of the assets of any other ~~person or division or line of business of a~~ person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and ~~Disposition~~ sale of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the ~~Borrower~~ Borrowers or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by ~~the~~ a Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by ~~the~~ a Borrower), (iii) the ~~Disposition~~ sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by ~~the~~ a Borrower or any ~~Subsidiary,~~ Subsidiary or (iv) ~~assignments by~~ the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein sale or ~~(v) the Disposition~~ disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary into or with ~~or into the~~ a Borrower in a transaction in which the applicable Borrower is the survivor, (ii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary into or with ~~or into~~ any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is ~~or becomes~~ a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than ~~the~~ a Borrower or a Subsidiary Loan Party receives any ~~consideration (unless otherwise permitted by Section 6.04)~~consideration, (iii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary that is not a Subsidiary Loan Party into or with ~~or into~~ any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the ~~Borrower determines~~ Borrowers determine in good faith that such liquidation, dissolution or change in form is in the best interests of the ~~Borrower~~ Borrowers and is not materially disadvantageous to the ~~Lenders,~~ Lenders or (v) any Subsidiary may ~~merge~~ merge, consolidate or ~~consolidate~~ amalgamate into or with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a ~~Subsidiary (unless otherwise permitted by Section 6.04)~~Subsidiary, which shall be a Loan Party if the ~~merging~~ merging, consolidating or ~~consolidating~~ amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.10; (c) ~~Dispositions~~ sales, transfers, leases or other dispositions to ~~the~~ a Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any ~~Dispositions~~ sales, transfers, leases or other dispositions by a Borrower or a Subsidiary Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this ~~clause~~ paragraph (c) shall not (1) prior to the Commencement of Operations of the Development, be ~~made~~ permitted and (2) thereafter, in ~~compliance~~ the aggregate exceed, (x) in any fiscal year of the Borrowers, $3.5 million and (y) $10 million unless, with ~~Section 6.04~~respect to clause (y) above, no Default or Event of Default exists or would result therefrom and immediately after giving effect to such sales, transfers, leases or other dispositions, the Senior Secured Leverage Ratio on a Pro Forma Basis shall not be greater than 3.5 to 1.0; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) ~~Dispositions~~ the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) sales, transfers, leases, licenses or other ~~Dispositions~~ dispositions of ~~assets~~assets not otherwise permitted by this Section 6.05; provided, that (i) no Default or Event of Default exists or would result therefrom, (ii) with respect to any such sale, transfer, lease or other disposition with aggregate gross proceeds (including noncash proceeds) in excess of $10 million, immediately after giving effect thereto, the Senior Secured Leverage Ratio on a Pro Forma Basis shall not be greater than 4.0 to 1.0, (iii) the Net Proceeds ~~thereof, if any,~~ thereof are applied in accordance with Section 2.11(b), (iv) with respect to any sale, transfer or other disposition in excess of $5.0 million, such disposition is for at least 75% cash consideration; provided, that for purposes of this clause (iv), (1) the amount of any liabilities (as shown on a Borrower’s or any Subsidiary’s most recent balance sheet or in the notes thereto) of a Borrower or any Subsidiary of a Borrower (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets, (2) any notes or other obligations or other securities or assets received by a Borrower or a Subsidiary of a Borrower from such transferee that are converted by such Borrower or such Subsidiary of a Borrower into cash within 180 days of the receipt thereof (to the extent ~~required thereby~~of the cash received), (3) any Designated Non-Cash Consideration received by a Borrower or any of the Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by a Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (3) that is at that time outstanding, not to exceed $25 million (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) and (4) with respect to any lease of assets by a Borrower or a Subsidiary that constitutes a disposition, receipt of lease payments over time on market terms (as determined in good faith by the applicable Borrower) where the payment consideration is at least 75% cash consideration shall, in each case, be deemed to be cash and (v) prior to the Commencement of Operations of the Development, the aggregate gross proceeds (including noncash proceeds) of dispositions pursuant to this Section 6.05(g) shall not exceed $10.0 million in any fiscal year of the Borrowers; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving ~~the~~ a Borrower, the applicable Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~corporation; (i) leases, ~~licenses~~ licenses, easements, or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) ~~Dispositions~~ sales, leases or other dispositions of inventory ~~or Dispositions or abandonment~~ of ~~Intellectual Property of the~~ a Borrower and its Subsidiaries determined ~~in good faith~~ by the management of ~~the~~ such Borrower to be no longer useful or necessary in the operation of the business of the ~~Borrower~~ Borrowers or ~~any of the~~ their Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of ~~clause (a) of~~ the definition of “Net Proceeds”; (l) ~~the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings~~[reserved]; (m) [reserved]; (n) subject to the last paragraph of this Section 6.05, the Borrower and its Restricted Subsidiaries may enter into any ~~exchange~~ leases, subleases, easements or licenses with respect to any of ~~assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that~~ its Real Property; (o) any disposition made pursuant to an Operations Management Agreement; (p) the (i) ~~at least 90%~~ lease, sublease or license of any portion of the ~~consideration received by~~ Development to persons who, either directly or through Affiliates of such persons, intend to operate or manage nightclubs, bars, restaurants, recreation, spa, pool, exercise or gym facilities, or entertainment or retail venues or similar or related establishments or facilities within the ~~transferor consists of assets that will be used in a business or business activity permitted hereunder,~~ Development and (ii) in the ~~event~~ grant of ~~a swap with a fair market value (as determined in good faith by the Borrower) in excess~~ declarations of ~~$12,000,000~~covenants, ~~the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower~~ conditions and restrictions and/or easements with respect to common area spaces and similar instruments benefiting such ~~fair market value~~ tenants of such lease and subleases generally and/or entered into connection with the Development (~~iii) in~~ collectively, the ~~event of a swap~~ “Venue Easements”, and together with ~~a fair market value (as determined in good faith by~~ any such leases or subleases, collectively the ~~Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower~~“Venue Documents”); ~~provided, further,~~ provided that (A) no ~~Default or~~ Event of Default ~~exists~~ shall exist and be continuing at the time any such Venue Document is entered into or would occur as a result ~~therefrom~~of entering into such Venue Document, (B) the ~~Net Proceeds~~Loan Parties shall be required to maintain control (which may be through required contractual standards) over the primary aesthetics and standards of service and quality of the business being operated or conducted in connection with any such leased, ~~if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby~~ subleased or licensed space and (C) ~~with respect~~ no Venue Document or operations conducted pursuant thereto would reasonably be expected to ~~any exchange of assets for services~~materially interfere with, ~~immediately after giving effect thereto~~or materially impair or detract from, the ~~Borrower~~ operation of the Development; provided further that upon request by a Borrower, the Collateral Agent on behalf of the Secured Parties shall be provide the tenant, subtenant or licensee under any Venue Document with a subordination, non-disturbance and attornment agreement substantially in ~~Pro Forma Compliance~~the form of Exhibit G-1 or Exhibit G-2 hereto, as applicable, or in such other form as is reasonably satisfactory to the Collateral Agent and the applicable Loan Party; (q) the dedication of space or other dispositions of property in connection with and in furtherance of constructing structures or improvements reasonably related to the development, construction and operation of the Development; provided, that in each case such dedication or other dispositions are in furtherance of, and do not materially impair or interfere with the use or operations (or intended use or operations) of, the Development; (r) the granting of easements, rights of way, rights of access and/or similar rights to any Governmental Authority, utility providers, cable or other communication providers and/or other parties providing services or benefits to the Development, the Real Property held by the Loan Parties or the public at large that (i) do not in any case materially detract from the value of the Real Property, taken as a whole, and (ii) would not reasonably be expected to interfere in any material respect with the construction, development or operation of the Development or the Real Property; and (s) any disposition of Equity Interests of a Subsidiary pursuant to an agreement or other obligation with or to a person (other than a Borrower and their Subsidiaries) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition. Notwithstanding the foregoing provisions of this Section 6.05, subsection (n) ~~if at~~ above shall be subject to the ~~time thereof and immediately after giving effect thereto~~ additional provisos that: (a) no Event of Default shall ~~have occurred~~ exist and be continuing at the time such transaction, lease, sublease, easement or license is entered into, (b) such transaction, lease, sublease, easement or license would ~~result therefrom~~not reasonably be expected to materially interfere with, ~~any Subsidiary~~ or ~~any other person may be merged, amalgamated~~ materially impair or ~~consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person~~detract from, the ~~“Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws~~ operation of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04Development, and (iic) ~~at least 75% of the proceeds of such Disposition (except~~ no lease, sublease, easement nor license may provide that a Loan Party subordinate its fee, condominium or leasehold interest to ~~Loan Parties) consist of cash~~ any lessee or ~~Permitted Investments~~any party financing any lessee; provided, that the ~~provisions~~ Collateral Agent on behalf of ~~this clause~~ the Secured Parties shall provide the tenant under any such lease or sublease or licensee under any such license or easement holder under such easement (~~ii) shall not apply to any individual transaction or series~~ at the request of ~~related transactions involving assets with a fair market value (as determined in good faith by~~ the Borrower) ~~of less than $20,000,000 or to other transactions involving assets~~ with a ~~fair market value (~~subordination, non-disturbance and attornment agreement substantially in the form of Exhibit G-1 or Exhibit G-2 hereto, as ~~determined~~ applicable, with such changes as the Collateral Agent may reasonably approve or in ~~good faith~~ such other form as is reasonably satisfactory to the Collateral Agent. To the extent any Collateral is sold or disposed of in a transaction expressly permitted by this Section 6.05 to any person other than a Borrower or any Subsidiary Loan Party, such Collateral shall be sold or disposed of free and clear of the Liens created by the ~~Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis~~ Loan Documents (provided that, for the ~~most recently ended Test Period in~~ avoidance of doubt, with respect to any disposal consisting of an operating lease or license, the ~~aggregate for all~~ underlying property retained by such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower Borrowers or such Subsidiary ~~from~~ Loan Party will not be so released), and the ~~transferee that are converted~~ Administrative Agent shall take, and is hereby authorized by each Lender to take, any actions reasonably requested by the ~~Borrower or such Subsidiary into cash within 180 days after receipt thereof (~~Borrowers in order to evidence the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value)foregoing.

Appears in 1 contract

Samples: Credit Agreement (CAESARS ENTERTAINMENT Corp)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary, (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) (i) Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section 6.06 and (ii) any Disposition made pursuant to the Merger Agreement; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor ~~Borrower~~ Xxxxxxxx will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).

Appears in 1 contract

Samples: Incremental Assumption and Amendment Agreement (ADT Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge ~~into~~ into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or ~~Dispose~~ sell, transfer, lease or otherwise dispose of (in one transaction or in a series of ~~related~~ transactions) all or any part of its assets (whether now owned or hereafter acquired), or ~~Dispose~~ issue, sell, transfer or otherwise dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of ~~related~~ transactions) all or any substantial part of the assets of any other ~~person or division or line of business of a~~ person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and ~~Disposition~~ sale of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the ~~Disposition~~ sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any ~~Subsidiary,~~ Subsidiary or (iv) ~~assignments by~~ the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein sale or ~~(v) the Disposition~~ disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary into or with ~~or into~~ the Borrower in a transaction in which the Borrower is the survivor, (ii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary into or with ~~or into~~ any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is ~~or becomes~~ a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any ~~consideration (unless otherwise permitted by Section 6.04)~~consideration, (iii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary that is not a Subsidiary Loan Party into or with ~~or into~~ any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the ~~Lenders~~Lenders (it being understood that in the case of any liquidation or dissolution of a Subsidiary Loan Party, such Subsidiary Loan Party shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Subsidiary that is a Subsidiary Loan Party will remain a Subsidiary Loan Party (unless such Subsidiary Loan Party is otherwise permitted to cease being a Subsidiary Loan Party hereunder) and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Security Documents), or (v) any Subsidiary may ~~merge~~ merge, consolidate or ~~consolidate~~ amalgamate into or with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a ~~Subsidiary (unless otherwise permitted by Section 6.04)~~Subsidiary, which shall be a Loan Party if the ~~merging~~ merging, consolidating or ~~consolidating~~ amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.10; (c) ~~Dispositions~~ sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise~~); provided~~) (other than sales, ~~that any Dispositions~~ transfers, leases or other dispositions by the Borrower or a Subsidiary Loan Party to a Subsidiary that is not a Subsidiary Loan ~~Party in reliance on this clause (c) shall be made in compliance with Section 6.04~~Party); (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) ~~Dispositions~~ the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) ~~other Dispositions of assets; provided~~sales, ~~that the Net Proceeds thereof~~transfers, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with; (i) leases, licenses or ~~subleases~~ other dispositions of assets not otherwise permitted by this Section 6.05 to the extent not constituting (in one transaction or ~~sublicenses~~ in a series of ~~any real~~ related transactions) the disposition of all or ~~personal property in~~ substantially all of the ~~ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property~~ assets of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange of assets for services and/or other assets used or useful in on a ~~Similar Business of comparable or greater value~~consolidated basis; ~~provided,~~ provided that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (~~B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C~~ii) with respect to any ~~exchange~~ such sale, transfer, lease or other disposition with aggregate gross proceeds (including noncash proceeds) in excess of ~~assets for services~~$10.0 million, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; , (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (Aiii) the ~~Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”~~Net Proceeds thereof are applied in accordance with Section 2.11(b), (1iv) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to ~~Sale and Lease-Back Transactions referred to~~ any sale, transfer or other disposition in ~~clause (b)(y)~~ excess of ~~Section 6.03~~$5.0 million, ~~under Section 6.05(d), shall be permitted unless (i)~~ such ~~Disposition~~ disposition is for ~~fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii)~~ at least 75% ~~of the proceeds of such Disposition (except to Loan Parties) consist of~~ cash ~~or Permitted Investments~~consideration; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, provided that for purposes of this clause (iiiv), ~~each of the following shall be deemed to be cash:~~ (a1) the amount of any liabilities (as shown on the Borrower’s or ~~such~~ any Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or any Subsidiary of the Borrower (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets or ~~are~~ otherwise cancelled in connection with such transaction, (b2) any notes or other obligations or other securities or assets received by the Borrower or a Subsidiary of the Borrower from such ~~Subsidiary from the~~ transferee that are converted by the Borrower or such Subsidiary of the Borrower into cash within 180 days ~~after~~ of the receipt thereof (to the extent of the cash received~~) and~~ ), (c3) any Designated Non-Cash Consideration received by the Borrower or any of ~~its~~ the Subsidiaries in such ~~Disposition~~ Asset Sale having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c3) that is at that time outstanding, not to exceed ~~the greater of~~ $~~150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration~~ 25.0 million (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) and (4) with respect to any lease of assets by the Borrower or a Subsidiary that constitutes a disposition, receipt of lease payments over time on market terms (as determined in good faith by the Borrower) where the payment consideration is at least 75% cash consideration shall, in each case, be deemed to be cash and (v) prior to the Commencement of Operations of the Development, the aggregate gross proceeds (including noncash proceeds) of dispositions pursuant to this Section 6.05(g) shall not exceed $10.0 million in any fiscal year of the Borrower; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving corporation; (i) leases, licenses, easements, or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or its Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of the definition of “Net Proceeds”; (l) [Reserved]; (m) any exchange of gaming equipment and related assets for gaming equipment and related assets of comparable or greater value; provided that (i) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $10.0 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $25.0 million, such exchange shall have been approved by at least a majority of the Board of Directors of the Borrower or a Parent Entity; provided further that (i) no Default or Event of Default shall exist or would result therefrom, (ii) with respect to any such exchange with aggregate consideration in excess of $25.0 million, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance, and (iii) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b); (n) subject to the last paragraph of this Section 6.05, the Borrower and its Restricted Subsidiaries may enter into any leases, subleases, easements or licenses with respect to any of its Real Property; (o) any disposition made pursuant to an Operations Management Agreement; (p) the (i) lease, sublease or license of any portion of the Development to persons who, either directly or through Affiliates of such persons, intend to operate or manage nightclubs, bars, restaurants, recreation, spa, pool, exercise or gym facilities, or entertainment or retail venues or similar or related establishments or facilities within the Development and (ii) the grant of declarations of covenants, conditions and restrictions and/or easements with respect to common area spaces and similar instruments benefiting such tenants of such lease and subleases generally and/or entered into connection with the Development (collectively, the “Venue Easements”, and together with any such leases or subleases, collectively the “Venue Documents”); provided that (A) no Event of Default shall exist and be continuing at the time any such Venue Document is entered into or would occur as a result of entering into such Venue Document, (B) the Loan Parties shall be required to maintain control (which may be through required contractual standards) over the primary aesthetics and standards of service and quality of the business being operated or conducted in connection with any such leased, subleased or licensed space and (C) no Venue Document or operations conducted pursuant thereto would reasonably be expected to materially interfere with, or materially impair or detract from, the operation of the Development (taken as a whole); provided further that upon request by the Borrower, the Collateral Agent on behalf of the Secured Parties shall provide the tenant, subtenant or licensee under any Venue Document with a subordination, non-disturbance and attornment agreement in such form as is reasonably satisfactory to the Administrative Agent and the applicable Loan Party; (q) the dedication of space or other dispositions of property in connection with and in furtherance of the development, construction and operation of the Development (taken as a whole); provided that in each case such dedication or other dispositions are in furtherance of, and do not materially impair or interfere with the use or operations (or intended use or operations) of, the Development (taken as a whole); (r) the granting of easements, rights of way, rights of access and/or similar rights to any Governmental Authority, utility providers, cable or other communication providers and/or other parties providing services or benefits to the Development, the Real Property held by the Loan Parties or the public at large that would not reasonably be expected to interfere in any material respect with the construction, development or operation of the Development (taken as a whole); provided that upon request by the Borrower, the Administrative Agent shall direct the Collateral Agent on behalf of the Secured Parties to subordinate its Mortgage on such Real Property to such easement, right of way, right of access or similar agreement in such form as is reasonably satisfactory to the Administrative Agent and the applicable Loan Party; and (s) any disposition of Equity Interests of a Subsidiary pursuant to an agreement or other obligation with or to a person (other than the Borrower and its Subsidiaries) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition. Notwithstanding the foregoing provisions of this Section 6.05, subsections (n) and (r) above shall be subject to the additional provisos that: (a) no Event of Default shall exist and be continuing at the time such transaction, lease, sublease, easement or license is entered into, (b) such transaction, lease, sublease, easement or license would not reasonably be expected to materially interfere with, or materially impair or detract from, the operation of the Development (taken as a whole), and (c) no lease, sublease, easement nor license may provide that a Loan Party subordinate its fee, condominium or leasehold interest to any lessee or any party financing any lessee; provided that, upon request by the Borrower, the Administrative Agent shall direct the Collateral Agent on behalf of the Secured Parties to provide the tenant under any such lease or sublease or licensee under any such license or easement holder under such easement with a subordination, non-disturbance and attornment agreement in such form as is reasonably satisfactory to the Administrative Agent (it being understood and agreed that no such agreement shall be required to be provided unless (A) no Event of Default shall exist and be continuing at such time or would occur as a result thereof, (B) no Material Adverse Effect would result therefrom, and (C) prior to the Commencement of Operations of the Development, such agreement would not reasonably be expected to materially interfere with, or materially impair or detract from, the Development (taken as a whole)). To the extent any Collateral is sold or disposed of in a transaction expressly permitted by this Section 6.05 to any person other than the Borrower or any Subsidiary Loan Party, such Collateral shall be sold or disposed of free and clear of the Liens created by the Loan Documents (provided that, for the avoidance of doubt, with respect to any disposal consisting of an operating lease or license, the underlying property retained by the Borrower or such Subsidiary Loan Party will not be so released), and the Administrative Agent shall take, and is hereby authorized by each Lender to take, any actions reasonably requested by the Borrower in order to evidence the foregoing so long as the Borrower shall have provided the Administrative Agent such certifications or documents as the Administrative Agent shall reasonably request in order to demonstrate compliance with this Agreement.

Appears in 1 contract

Samples: Credit Agreement (Caesars Acquisition Co)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary, (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein [reserved] or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma ~~Compliance~~Compliance with the First Lien Credit Agreement Financial Covenant; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, or the District of ~~Columbia or any territory thereof~~Columbia, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (65) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor ~~Borrower~~ Bxxxxxxx will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).

Appears in 1 contract

Samples: Term Loan Credit Agreement (ADT Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge ~~into~~ into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) (x) the purchase and Disposition of inventory, or (y) the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any ~~Subsidiary,~~ Subsidiary or (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary into or with ~~or into~~ the Borrower in a transaction in which the Borrower is the survivor, (ii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary into or with ~~or into~~ any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary that is not a Subsidiary Loan Party into or with ~~or into~~ any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the ~~Lenders,~~ Lenders or (v) any Subsidiary may ~~merge~~ merge, consolidate or ~~consolidate~~ amalgamate into or with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the ~~merging~~ merging, consolidating or ~~consolidating~~ amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.10; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made either (i) on terms that are substantially no less favorable to such Loan Party, as applicable, than would be obtained in ~~compliance~~ a comparable arm’s-length transaction with a person that is not an Affiliate, as determined by the Board of Directors of such Loan Party in good faith or (ii) be counted as an Investment to the extent of any shortfall below fair market value and permitted to the extent permitted by Section 6.04; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) ~~Dispositions~~ the Disposition of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) ~~other~~ Dispositions of ~~assets~~assets not otherwise permitted by this Section 6.05; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b~~) to the extent required thereby;~~). (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~entity; (i) leases, ~~licenses~~ licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of ~~clause~~ paragraph (a) of the definition of “Net Proceeds”;; and (l~~) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m~~) any exchange of assets for services and/or other assets ~~used or useful in a Similar Business~~ of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~10,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~18,000,000~~20,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this clause (m) shall not exceed, in any fiscal year of the Borrower, the greater of $95,000,000 and 8.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), (B) no Default or Event of Default exists or would result therefrom, and (BC) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no Disposition of assets under Section 6.05(d) and 6.05(g) ~~or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d),~~ shall be permitted unless ~~(i)~~ such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section ~~6.04,~~ 6.04 and (ii) ~~at least 75% of the proceeds of~~ no Disposition under Section 6.05(g) shall be permitted unless such Disposition (except to Loan Parties) ~~consist of~~ is for at least 75% cash ~~or Permitted Investments~~consideration; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $~~20,000,000~~ 10,000,000 or to other transactions involving assets with a fair market value ~~(as determined in good faith by the Borrower)~~ of not more than the greater of $~~250,000,000~~ 35,000,000 and ~~0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period~~ 3.0% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or ~~such~~ any Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from ~~the~~ such transferee that are converted by the Borrower or such Subsidiary into cash within 180 days ~~after~~ of the receipt thereof (to the extent of the cash received~~) and~~ ), (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this ~~clause~~ paragraph (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 65,000,000 and ~~0.05 times~~ 6.0% of Consolidated Total Assets as of the ~~EBITDA calculated on a Pro Forma Basis for~~ end of the ~~Test Period ended~~ fiscal quarter immediately prior to the receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) (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) and (d) with respect to any lease of assets by the Borrower or a Subsidiary that constitutes a disposition, receipt of lease payments over time on market terms (as determined in good faith by the Borrower) where the payment consideration is at least 75% cash consideration shall, in each case, be deemed to be cash. To the extent any Collateral is sold or disposed of in a transaction permitted by this Section 6.05 to any person other than the Borrower or any Subsidiary Loan Party, such Collateral shall be sold or disposed of free and clear of the Liens created by the Loan Documents (provided that, for the avoidance of doubt, with respect to any disposal consisting of an operating lease or license, the underlying property retained by the Borrower or such Subsidiary Loan Party will not be so released), and the Administrative Agent shall take, and is hereby authorized by each Lender to take, any actions reasonably requested by the Borrower in order to evidence the foregoing.

Appears in 1 contract

Samples: Credit Agreement (Sprouts Farmers Markets, LLC)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), effect any LLC Division, or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, or the Disposition of any Customer Notes, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any ~~Subsidiary,~~ Subsidiary or (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) (i) Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section 6.06 and (ii) any Disposition made pursuant to the Merger Agreement; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).,

Appears in 1 contract

Samples: Incremental Assumption and Amendment Agreement (PlayAGS, Inc.)

Appears in 1 contract

Samples: Credit Agreement (EVERTEC, Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, liquidate, wind up or ~~Dispose~~ dissolve itself (or suffer any liquidation or dissolution), or change its jurisdiction of organization to a jurisdiction outside of the United States, or convey, sell, lease or sublease (as lessor or sublessor), exchange, transfer or otherwise dispose of (in one transaction or in a series of ~~related~~ transactions) all or any part of its assets or property of any kind whatsoever (whether now owned or hereafter acquired), or ~~Dispose~~ issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or any ~~Subsidiary~~Subsidiaryany Covenant Party, or purchase, lease or otherwise acquire (in one transaction or a series of ~~related~~ transactions) all or any substantial part of the assets or stock of any other person or ~~division~~ any division, unit or ~~line of~~ business of a any person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and ~~Disposition of inventory, or the~~ sale of ~~receivables pursuant to non~~raw materials and inventory (including, without limitation, work-~~recourse factoring arrangements, in each case~~ in-process and finished goods inventory) in the ordinary course of business by the Borrower or any ~~Subsidiary~~Subsidiaryany Covenant Party, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any ~~Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower)~~Subsidiaryany Covenant Party, (iii) the ~~Disposition~~ sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any ~~Subsidiary~~SubsidiaryCovenant Party, or (iv) ~~assignments by~~ the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition sale of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the ~~merger~~ merger, consolidation or amalgamation of any Subsidiary (including, a Subsidiary Loan Party) into (or with) the Borrowera First Tier Covenant Party in a transaction in which, except for the Permitted Borrower is the survivorMerger, the applicable First Tier Covenant Party is the survivor (and, except for the Permitted Borrower Merger, for any merger, consolidation or amalgamation involving the Borrower, the Borrower shall be the survivor), (ii) the merger, consolidation or amalgamation or consolidation of any Subsidiary into or with ~~or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into~~ any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the ~~Borrower~~ Borrowera First Tier Covenant Party or a Subsidiary Loan Party receives any ~~consideration (unless otherwise permitted by Section 6.04)~~consideration, (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party into or with ~~or into~~ any other Subsidiary that is not a Subsidiary Loan Party, (iv) the ~~liquidation~~ liquidation, winding up or dissolution or change in form of entity of any Subsidiary (other than a Loan Party) if the Borrower determines in good faith that such liquidation, winding up, dissolution or change in form is in the best interests of the Borrower or such other applicable First Tier Covenant Party, as applicable, and is not materially disadvantageous to any Agent or the Lenders, or (v) QLICI Subsidiary may merge, consolidate or amalgamate into or with Holdings or dissolve so long as (1) with respect to such merger, consolidation or amalgamation, Holdings is the surviving or resulting entity, (2) QLICI Subsidiary has no assets or liabilities and (3) the Borrower determines in good faith that such merger, consolidation, amalgamation or dissolution is in the best interests of the Borrower or (vi) any First Tier Covenant Party (other than the Borrower) or any Subsidiary may ~~merge~~ merge, consolidate or ~~consolidate~~ amalgamate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a ~~Subsidiary (unless otherwise permitted by Section 6.04)~~First Tier Covenant Party or, as applicable, a Subsidiary, which shall be a Loan Party if the ~~merging~~ merging, consolidating or ~~consolidating~~ amalgamating Subsidiary was a Loan Party and which together with each of its ~~Subsidiaries~~ subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.10; (c) ~~Dispositions~~ sales, transfers, leases or other dispositions to the Borrower or a ~~Subsidiary~~ Subsidiaryany Covenant Party (upon voluntary liquidation or otherwise); ~~provided,~~ provided that any ~~Dispositions~~ sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section ~~6.04~~6.07, and shall not in the aggregate exceed, in any fiscal year of the Borrower, $10.0 million; provided that (i) with respect to any sale, transfer, lease or other disposition made under this clause (c), no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) immediately after giving effect to any sale, transfer, lease or other disposition made under this clause (c), the aggregate Revolving Facility Credit Exposure shall not exceed the Line Cap; (d) Sale and ~~Lease-~~Lease Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and ~~Restricted Payments~~ dividends permitted by Section ~~6.06~~ 6.06, Capital Expenditures and ~~(ii) any Disposition made pursuant to~~ the ~~Merger Agreement~~transactions listed on Schedule 3.07(d); (f) ~~Dispositions~~ the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) sales, transfers, leases, licenses or other ~~Dispositions~~ dispositions of ~~assets~~assets not otherwise permitted by this Section 6.05; ~~provided~~provided that (i) no Default or Event of Default exists or would result therefrom, ~~that~~ and (ii) with respect to any such sale, transfer, lease, license or other disposition with gross proceeds (including noncash proceeds) in excess of $5.0 million, immediately after giving effect thereto, the ~~Net Proceeds thereof, if any,~~ Payment Conditions are ~~applied in accordance with Section 2.11(b) to the extent required thereby~~satisfied; (h) the Permitted ~~Business Acquisitions (including~~ Restructuring Transactions; provided that any ~~merger~~exchange, ~~consolidation~~ transfer or ~~amalgamation~~ disposal to a person other than a Loan Party in ~~order~~ connection with any Permitted Restructuring Transaction shall be on terms as are reasonably satisfactory to ~~effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving~~ the ~~Borrower, the Borrower is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with~~Administrative Agent; (i) leases, ~~licenses~~ licenses, or subleases or sublicenses of any real or personal property granted in the ordinary course of business, to the extent not otherwise prohibited by this Agreement; (j) ~~Dispositions~~ sales, leases or other dispositions of inventory ~~or Dispositions or abandonment of Intellectual Property~~ of the Borrower and ~~its Subsidiaries~~ the SubsidiariesCovenant Parties determined ~~in good faith~~ by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; Covenant Parties; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange of assets for services and/or other assets ~~used or useful in a Similar Business~~ of comparable or greater value; ~~provided,~~ provided that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value ~~(as determined in good faith by the Borrower)~~ in excess of $~~12,000,000~~10.0 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market ~~value~~ value, and (iii) in the event of a swap with a fair market value ~~(as determined in good faith by the Borrower)~~ in excess of $~~18,000,000~~20.0 million, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Borrower, $150.0 million, (B) no Default or Event of Default exists or would result ~~therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby~~ therefrom and (C) with respect to any such exchange with aggregate gross consideration in excess of ~~assets for services~~$10.0 million, immediately after giving effect thereto, the ~~Borrower~~ BorrowerCovenant Parties shall be in Pro Forma Compliance; (nl) ~~if at~~ exchanges of assets between CWPC and one or more of the ~~time thereof~~ Borrowera First Tier Covenant Party and ~~immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom,~~ any Subsidiary ~~or any other person may be merged~~Loan Party through the division of land between respective mill, ~~amalgamated or consolidated with or into~~ utility and hydroelectric assets for the ~~Borrower~~owned Real Property located at Wisconsin Rapids, Wisconsin; provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantorthat, unless ~~it is the other party to such merger or consolidation, shall have~~ otherwise agreed by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) ~~an officer’s certificate stating~~ the aggregate fair market value of the Real Property or other assets being received by the applicable Loan Party is approximately equal to or greater than the fair market value of the assets being transferred by such Loan Party in such exchange, (y) the exchange of assets by the parties to the transaction is substantially simultaneous, and (z) the assets received by such Loan Party shall not be subject to any contractual obligation that limits the ability of such Loan Party to create, incur, assume or suffer to exist any Lien on such assets to secure the Loan Obligations (such transactions pursuant to this clause (l), collectively, the “Permitted Land Swaps”); (m) Permitted Business Acquisitions (including any merger or consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided that immediately following any such merger or consolidation ~~does not violate this Agreement~~ or ~~any other Loan Document and~~ amalgamation, (yi) ~~if requested by~~ (A) involving the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted forBorrower, the Borrower ~~under this Agreement); and~~is the surviving corporation or (B) involving any other First Tier Covenant Party, a First Tier Covenant Party is the surviving corporation, (ii) involving a Subsidiary Loan Party, the surviving or resulting entity shall be a Subsidiary Loan Party or a First Tier Covenant Party, and (iii) involving a Subsidiary that is not a Subsidiary Loan Party, the surviving or resulting entity shall be a Wholly-Owned Subsidiary; (on) ~~any Disposition to effect~~ sales or other dispositions of xxxxx, including through the ~~formation~~ sale of Equity Interests of any Subsidiary ~~that is a Delaware Divided LLC~~ owning or ~~Delaware Divided LP and would otherwise not be prohibited hereunder~~operating any such mill; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) ~~such Disposition is for fair market value (as determined in good faith by the Borrower),~~ no Default or ~~if not for fair market value, the shortfall is permitted as an Investment under Section 6.04,~~ Event of Default exists or would result therefrom and (ii) no sale or other disposition shall be permitted by this paragraph (n) unless such sale or other disposition is for at least 75% ~~of the proceeds of such Disposition (except to Loan Parties) consist of~~ cash ~~or Permitted Investments~~consideration; ~~provided,~~ provided that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the ~~Borrower~~ Borrowera First Tier Covenant Party or any of ~~its~~ the Subsidiaries in such ~~Disposition~~ sale or other disposition having an aggregate fair market ~~value (as determined in good faith by the Borrower)~~value, taken together with all other Designated Non-Cash Consideration received pursuant to this ~~clause~~ paragraph (cn) or pursuant to the last proviso to the last paragraph of this Section 6.05 that is at that time outstanding, not to exceed $15.0 million at the ~~greater~~ time of ~~$150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to~~ the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be cash; and (o) sales or assignments of (x) accounts receivable arising from sales of goods or services by a Loan Party to a customer and (y) related assets, in connection with which a commercial bank of national standing (acting in its own capacity or as agent on behalf of the customer) offers to purchase such accounts receivable on commercially reasonable terms from time to time in a manner that results in faster effective realization of such accounts receivable; provided that (i) no Default or Event of Default exists or would result therefrom, (ii) neither the Borrower nor any Subsidiaryno Covenant Party shall have any obligation, contingent or otherwise, in connection with such sale, other than to deliver the accounts receivable and related assets sold in such transaction free and clear of any encumbrance, (iii) such sale is for cash and fair market value, (iv) the number of Account Debtors whose accounts receivable are at any time subject to such sales or assignments shall be limited to three (3), and while such Account Debtors’ accounts receivable are subject to such sales or assignments, no Accounts of such Account Debtors shall constitute Eligible Accounts, (v) accounts receivable subject to such sales or assignments must be capable of being fully segregated from other Accounts (including with respect to accounts receivable reporting, purchase orders, invoicing and payments) and (vi) in the event that all Accounts of an Account Debtor cease to be subject to such sales or assignments, such Accounts may become Eligible Accounts (subject to the terms and conditions applicable to Accounts generally) subject to the consent of the Administrative Agent not to be unreasonably withheld or delayed. Notwithstanding anything to the contrary contained in this Section 6.05, (i) except for any sale, transfer or disposition of all (but not a portion of) the Equity Interests of any SubsidiariesSubsidiary of any First Tier Covenant Party in compliance with the provisions of Section 6.05 or a transaction permitted by Section 6.05(b), (c) or (n), no sale, transfer or other disposition of any Equity Interests of any Subsidiary of any First Tier Covenant Party shall be permitted by this Section 6.05, (ii) no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases, licenses or other dispositions to Loan Parties or from Subsidiaries that are not Loan Parties to other Subsidiaries that are not Loan Parties pursuant to paragraph (c) hereof and sales, transfers or other dispositions pursuant to paragraph (n) hereof) unless such disposition is for fair market value, and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (f) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $2.5 million (provided that such transactions do not involve assets with a fair market value of more than $15.0 million in the aggregate for all such transactions during the term of this Agreement); provided, further, that for purposes of clause (iii), any Designated Non-Cash Consideration received by the Borrower or any of the Subsidiariesany Covenant Party in such sale, transfer or other disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause proviso or pursuant to paragraph (n) above that is at that time outstanding, not to exceed $15.0 million at the time of the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) shall be deemed to be cash. To the extent that any Collateral is disposed of in a transaction expressly permitted by this Section 6.05 to any person other than Holdings, the Borrower, any other First Tier Covenant Party or any Subsidiary Loan Party, such Collateral (but not the proceeds thereof) shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent shall take, and shall be authorized by each Lender to take, any actions reasonably requested by the Borrower in order to evidence the foregoing.

Appears in 1 contract

Samples: Asset Based Revolving Credit Agreement (Verso Corp)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary, (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) (i) Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section 6.06 and (ii) any Disposition made pursuant to the Merger Agreement; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC ~~or Delaware Divided LP~~ and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided ~~LLC or Delaware Divided LP~~LLC) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).

Appears in 1 contract

Samples: Amendment Agreement No. 8 (ADT Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge ~~into~~ into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or ~~Dispose~~ sell, transfer, lease, license or otherwise dispose of (in one transaction or in a series of ~~related~~ transactions) all or any part of its assets (whether now owned or hereafter acquired), or ~~Dispose~~ issue, sell, transfer or otherwise dispose of any Equity Interests of in any Subsidiary, or purchase, ~~lease~~ lease, license or otherwise acquire (in one transaction or a series of ~~related~~ transactions) all or substantially all of the assets of any other ~~person or division or line of business of a~~ person, except that this Section ~~6.05~~ shall not prohibit: (a) (i) the purchase and ~~Disposition~~ sale of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to ~~operating~~ leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the ~~Disposition~~ sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any ~~Subsidiary,~~ Subsidiary or (iv) ~~assignments by~~ the ~~Borrower~~ sale or disposition of cash and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of the Borrower or any Subsidiary into or with ~~or into~~ the Borrower in a transaction in which the Borrower is the survivor, (ii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary into or with ~~or into~~ any ~~Subsidiary~~ Loan Party in a transaction in which the surviving or resulting entity is ~~or becomes~~ a ~~Subsidiary~~ Loan Party and, in the case of each of clauses (i) and (ii), no person other than ~~the Borrower or~~ a ~~Subsidiary~~ Loan Party receives any ~~consideration (unless otherwise permitted by Section 6.04)~~consideration, (iii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary that is not a ~~Subsidiary~~ Loan Party into or with ~~or into~~ any other Subsidiary that is not a ~~Subsidiary~~ Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower or its Subsidiaries and is not materially disadvantageous to the ~~Lenders,~~ Lenders or (v) any Subsidiary may ~~merge~~ merge, consolidate or ~~consolidate~~ amalgamate into or with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a ~~Subsidiary (unless otherwise permitted by Section 6.04)~~Subsidiary, which shall be a Loan Party if the ~~merging~~ merging, consolidating or ~~consolidating~~ amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.10; (c) ~~Dispositions~~ sales, transfers, leases, licenses or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise)~~; provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04~~; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section ~~6.04~~6.04 (including any merger, consolidation or amalgamation in order to effect an Investment), Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) ~~Dispositions~~ the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) sales, transfers, leases, licenses or other ~~Dispositions~~ dispositions of ~~assets~~assets not otherwise permitted by this Section 6.05 (other than Material Games or Material Assets); provided, that (i) no Event of Default exists or would result therefrom, in each case, determined at the date the definitive agreements for such sale, transfer, lease, license or other disposition of assets are entered into, (ii) the Net Proceeds ~~thereof, if any,~~ thereof are applied in accordance with Section 2.11(b), (iii) such sale, transfer, lease, license or other disposition of assets shall be for fair market value (as determined in good faith by the Borrower) or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04 and (iv) no such sale, transfer, lease, license or other disposition of assets in excess of $25.0 million shall be permitted unless such disposition is for at least 75% cash and cash equivalent consideration; provided, that for purposes of this subclause (g)(iv), each of the following shall be deemed to be cash: (A) the amount of any liabilities (as shown on the Borrower’s or any Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or any Subsidiary (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (B) any notes or other obligations or other securities or assets received by the Borrower or any Subsidiary from such transferee that are converted by the Borrower or such Subsidiary into cash within 180 days of the receipt thereof (to the extent ~~required thereby~~of the cash received), (C) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this subclause (g)(iv)(C) that is at that time outstanding, not to exceed $100.0 million (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) and (D) with respect to any lease of assets by the Borrower or a Subsidiary that constitutes a disposition, receipt of lease payments over time on market terms (as determined in good faith by the Borrower) where the payment consideration is at least 75% cash consideration; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~entity; (i) leases, ~~licenses~~ licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) ~~Dispositions~~ (i) sales, leases or other dispositions of ~~inventory or Dispositions or abandonment~~ inventory, (ii) non-exclusive licenses and sublicenses of ~~Intellectual Property~~ intellectual property in the ordinary course of business not interfering in any material respect with the business of the Borrower and the Subsidiaries, taken as a whole or (iii) sales, licenses, sublicenses, or other dispositions, or abandonment of intellectual property of the Borrower or any of its Subsidiaries in the ordinary course of business or if reasonably determined ~~in good faith~~ by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of its Subsidiaries, and, in each case, not interfering in any material respect with the business of the Borrower and the Subsidiaries, taken as a whole; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of ~~clause~~ paragraph (a) of the definition of “Net Proceeds”; (l) the purchase and ~~Disposition~~ sale, conveyance, transfer or other disposition (including by capital contribution) of ~~Securitization~~ Receivables Assets ~~including~~ pursuant to Permitted ~~Securitization~~ Receivables Financings; (m) ~~any exchange~~ sales, transfers, leases, licenses or other dispositions of ~~assets for services and/or other assets used~~ Material Games or ~~useful in a Similar Business of comparable or greater value~~Material Assets; provided, that (except in the case of non-exclusive licenses in the ordinary course of business not interfering in any material respect with the business of the Borrower and the Subsidiaries) (i) no Event of Default exists or would result therefrom, in each case, determined at ~~least 90% of~~ the ~~consideration received by~~ date the ~~transferor consists~~ definitive agreements for such sale, transfer, lease, license or other disposition of assets ~~that will be used in a business or business activity permitted hereunder~~are entered into, (ii) the Net Proceeds thereof are applied in ~~the event~~ accordance with Section 2.11(b), (iii) such sale, transfer, lease, license or other disposition of ~~a swap with a~~ any Material Game or Material Asset shall be for fair market value (as determined in good faith by the Borrower) and (iv) no such sale, transfer, lease, license or other disposition of any Material Game or Material Asset shall be permitted unless such disposition is for 100% cash and cash equivalent consideration; (n) any disposition, merger, consolidation, amalgamation or dissolution in ~~excess~~ connection with the Transactions; (o) any disposition made pursuant to any Operations Services Agreement; (p) [Reserved]; (q) the dedication of ~~$12,000,000~~space or other dispositions of property in connection with and in furtherance of constructing structures or improvements reasonably related to the development, construction and operation of any project; provided that in each case such dedication or other dispositions are in furtherance of, and do not materially impair or interfere with the operations of the Borrower and the Subsidiaries; (r) dedications of, or the granting of easements, rights of way, rights of access and/or similar rights, or other dispositions of property to any Governmental Authority, utility providers, cable or other communication providers and/or other parties providing services or benefits to any project, any Real Property held by the Borrower or any of the Subsidiaries or the public at large that would not reasonably be expected to interfere in any material respect with the operations of the Borrower and the Subsidiaries; provided that upon request by the Borrower, the Administrative Agent shall ~~have received a certificate from a Responsible Officer~~ direct the Collateral Agent on behalf of the ~~Borrower with respect~~ Secured Parties to subordinate its Mortgage on such Real Property to such ~~fair market value and (iii)~~ easement, right of way, right of access or similar agreement in ~~the event of a swap with a fair market value (~~such form as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative ~~Agent,~~ Agent and the Borrower or Subsidiary; (3s) ~~each Guarantor, unless it is the other party to such merger or consolidation, shall have by~~ any disposition of Equity Interests in a ~~supplement to the Holdings Guarantee and Pledge Agreement or the~~ Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to ~~clause~~ an agreement or other obligation with or to a person (3other than the Borrower and the Subsidiaries) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), ~~(5)~~ made as part of such acquisition and in each ~~mortgagor~~ case comprising all or a portion of ~~a Mortgaged Property, unless it is~~ the ~~other party to~~ consideration in respect of such ~~merger~~ sale or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); andacquisition; (ot) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition dispositions of assets ~~under Section 6.05(g) or, solely~~ that do not constitute Collateral with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a aggregate fair market value (as determined in good faith by the Borrower) of ~~less~~ not more than $~~20,000,000~~ 25.0 million; (u) dispositions of non-core assets acquired in connection with a Permitted Business Acquisition or to other ~~transactions involving~~ permitted investment; (v) other dispositions of assets (excluding Material Games or Material Assets) with a fair market value (as determined in good faith by the Borrower) of not more than $10.0 million; (w) dispositions set forth on Schedule 6.05; (x) subject to the ~~greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term~~ last paragraph of this ~~Agreement~~Section 6.05, the Borrower and the Subsidiaries may enter into any leases, subleases, easements or licenses with respect to any of its Real Property; ~~provided~~and (y) any surrender or waiver of contract rights or the settlement, ~~further~~release, ~~that for purposes~~ recovery on or surrender of contract, tort, or other claims of any kind. Notwithstanding the foregoing provisions of this ~~clause~~ Section 6.05, subsection (~~ii), each of the following~~ x) above shall be ~~deemed~~ subject to ~~be cash~~the additional provisos that: (a) no Event of Default shall exist and be continuing at the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with time such transaction, lease, sublease, easement or license is entered into, (b) such transaction, lease, sublease, easement or license would not reasonably be expected to materially interfere with, or materially impair or detract from, the operation of the applicable project, and (c) no lease or sublease may provide that a Loan Party subordinate its fee, condominium or leasehold interest to any ~~notes~~ lessee or any party financing any lessee; provided that, upon request by the Borrower, the Administrative Agent shall direct the Collateral Agent on behalf of the Secured Parties to provide the tenant under any such lease or sublease with a subordination, non-disturbance and attornment agreement in such form as is reasonably satisfactory to the Administrative Agent (it being understood and agreed that no such agreement shall be required to be provided unless (A) no Event of Default shall exist and be continuing at such time or would occur as a result thereof and (B) no Material Adverse Effect would result therefrom). To the extent any Collateral is sold or disposed of in a transaction expressly permitted by this Section 6.05 to any person other ~~obligations~~ than the Borrower or ~~other securities~~ any Subsidiary Loan Party, such Collateral shall be sold or ~~assets received~~ disposed of free and clear of the Liens created by the Loan Documents (and in the event transferred from a Loan Party that has granted a fixed charge over such Collateral pursuant to the Loan Documents to an entity that grants a floating charge over Collateral of such type pursuant to the Loan Documents, shall be released from such fixed charge and become subject to such floating charge) (provided that, for the avoidance of doubt, with respect to any disposal consisting of a lease or license, the underlying property retained by the Borrower or such Subsidiary ~~from~~ Loan Party will not be so released), and the ~~transferee that are converted~~ Administrative Agent shall take, and is hereby authorized by each Lender to take, any actions reasonably requested by the Borrower ~~or such Subsidiary into cash within 180 days after receipt thereof (~~in order to evidence the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value)foregoing.

Appears in 1 contract

Samples: Credit Agreement (Playtika Holding Corp.)

Appears in 1 contract

Samples: Credit Agreement (Verso Corp)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary, (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04; (d) Sale and Lease-Back Transactions permitted by Section 6.03; ; (e) (i) Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section 6.06 and (ii) any Disposition made pursuant to the Merger Agreement; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).

Appears in 1 contract

Samples: Incremental Assumption and Amendment Agreement (ADT Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (~~a) (~~i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any ~~Subsidiary~~Subsidiary or the conversion of accounts receivable to notes receivable, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property by the Borrower or any Subsidiary in the ordinary course of business or consistent with past practice or determined in good faith by the Borrower to be no longer used or useful or necessary in the operation of the business of the Borrower or any Subsidiary, or (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any ~~Subsidiary~~ Subsidiary, if the Borrower determines in good faith that such liquidation, dissolution or change in form is advisable or in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party (unless otherwise permitted by Section 6.04) and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted ~~Business~~ Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted ~~Business~~ Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section ~~6.05(n~~6.05(o) are otherwise complied with; (i) leases, assignments, licenses or subleases or sublicenses of any real or personal property in the ordinary course of ~~business~~business or consistent with past practice; (j) Dispositions of inventory or sales, transfers, dedication to the public, abandonment or other Dispositions ~~or abandonment~~ of Intellectual Property of the Borrower and its Subsidiaries determined ~~in good faith~~ by the management of the ~~Borrower~~ Borrower, in its reasonable business judgment, to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of (i) Securitization Assets including pursuant to Permitted Securitization ~~Financings~~Financings and (ii) any other Securitization Assets subject to Liens securing Permitted Securitization Financing; (m) to the extent constituting a Disposition, any termination, settlement, extinguishment or unwinding of obligations in respect of any Hedging Agreement; (n) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) to the extent the consideration received consists of assets, at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~5,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~18,000,000~~10,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of ~~Holdings or~~ the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (no) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the ~~Holdings Guarantee and Pledge Agreement or the~~ Subsidiary Guarantee ~~Agreement, as applicable,~~ Agreement confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor ~~Borrower~~ Xxxxxxxx will succeed to, and be substituted for, the Borrower under this Agreement); and (op) ~~any Disposition to effect~~ Dispositions in connection with the ~~formation~~ exercise of any ~~Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition~~ subscriptions, options, warrants, puts, calls or other ~~allocation of any assets (including any equity interests of such Delaware Divided LLC~~ rights or ~~Delaware Divided LP) in connection therewith is otherwise permitted hereunder~~commitments pursuant to agreements set forth on Schedule 3.08(b). Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, (ii) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (iiiii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (iiiii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $~~20,000,000~~ 10,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $~~250,000,000~~ 20,000,000 and ~~0.10~~ 0.20 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (iiiii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received~~) and~~ ), (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 50,000,000 and ~~0.05~~ 0.50 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), (d) the amount of Indebtedness of any Subsidiary that is no longer a Subsidiary as a result of such Asset Sale, to the extent that the Borrower and each other Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale and (e) consideration consisting of Indebtedness of the Borrower or a Subsidiary (other than Indebtedness that is subordinated in right of payment to the Loan Obligations) received from persons who are not the Borrower or a Subsidiary in connection with the Asset Sale and that is cancelled. For purposes of this Agreement, the fair market value of any assets acquired, leased, exchanged, Disposed of, sold, conveyed or transferred by the Borrower or any Subsidiary shall be determined in good faith by the Borrower and may be determined either, at the option of the Borrower, at the time of such acquisition, lease, exchange, Disposition, sale, conveyance or transfer, as applicable, or as of the date of the definitive agreement with respect to such acquisition, lease, exchange, Disposition, sale, conveyance or transfer, as applicable.

Appears in 1 contract

Samples: Credit Agreement (Cerence Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge ~~into~~ into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or ~~Dispose~~ sell, transfer, lease or otherwise dispose of (in one transaction or in a series of ~~related~~ transactions) all or any part of its assets (whether now owned or hereafter acquired), or ~~Dispose~~ issue, sell, transfer or otherwise dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of ~~related~~ transactions) all or any substantial part of the assets of any other ~~person or division or line of business of a~~ person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and ~~Disposition~~ sale of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the ~~Disposition~~ sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any ~~Subsidiary,~~ Subsidiary or (iv) ~~assignments by~~ the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein sale or ~~(v) the Disposition~~ disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary into or with ~~or into~~ the Borrower in a transaction in which the Borrower is the survivor, (ii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary into or with ~~or into~~ any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is ~~or becomes~~ a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any ~~consideration (unless otherwise permitted by Section 6.04)~~consideration, (iii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary that is not a Subsidiary Loan Party into or with ~~or into~~ any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the ~~Lenders,~~ Lenders or (v) any Subsidiary may ~~merge~~ merge, consolidate or ~~consolidate~~ amalgamate into or with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a ~~Subsidiary (unless otherwise permitted by Section 6.04)~~Subsidiary, which shall be a Loan Party if the ~~merging~~ merging, consolidating or ~~consolidating~~ amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.10; (c) ~~Dispositions~~ sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); ~~provided,~~ provided that any ~~Dispositions~~ sales, transfers, leases or other dispositions by the Borrower or a Subsidiary Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this ~~clause~~ paragraph (c) shall not (1) prior to the Commencement of Operations, be ~~made~~ permitted and (2) thereafter, in ~~compliance~~ the aggregate exceed, (x) in any fiscal year of the Borrower, $3.5 million and (y) $10.0 million unless, with ~~Section 6.04~~respect to clause (y) above, no Default or Event of Default exists or would result therefrom and immediately after giving effect to such sales, transfers, leases or other dispositions, the Borrower is in Pro Forma Compliance; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) ~~Dispositions~~ the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) ~~other Dispositions of assets; provided~~sales, ~~that the Net Proceeds thereof~~transfers, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange other dispositions of assets ~~for services and/or other assets used or useful in a Similar Business of comparable or greater value~~not otherwise permitted by this Section 6.05; ~~provided,~~ provided that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (~~B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C~~ii) with respect to any ~~exchange~~ such sale, transfer, lease or other disposition with aggregate gross proceeds (including noncash proceeds) in excess of ~~assets for services~~$10.0 million, immediately after giving effect thereto, the Borrower ~~shall be~~ is in Pro Forma Compliance; , (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (Aiii) the ~~Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”~~Net Proceeds thereof are applied in accordance with Section 2.11(b), (1iv) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to ~~Sale and Lease-Back Transactions referred to~~ any sale, transfer or other disposition in ~~clause (b)(y)~~ excess of ~~Section 6.03~~$5.0 million, ~~under Section 6.05(d), shall be permitted unless (i)~~ such ~~Disposition~~ disposition is for ~~fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii)~~ at least 75% ~~of the proceeds of such Disposition (except to Loan Parties) consist of~~ cash ~~or Permitted Investments~~consideration; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, provided that for purposes of this clause (iiiv), ~~each of the following shall be deemed to be cash:~~ (a1) the amount of any liabilities (as shown on the Borrower’s or ~~such~~ any Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or any Subsidiary of the Borrower (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets or ~~are~~ otherwise cancelled in connection with such transaction, (b2) any notes or other obligations or other securities or assets received by the Borrower or a Subsidiary of the Borrower from such ~~Subsidiary from the~~ transferee that are converted by the Borrower or such Subsidiary of the Borrower into cash within 180 days ~~after~~ of the receipt thereof (to the extent of the cash received~~) and~~ ), (c3) any Designated Non-Cash Consideration received by the Borrower or any of ~~its~~ the Subsidiaries in such ~~Disposition~~ Asset Sale having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c3) that is at that time outstanding, not to exceed ~~the greater of~~ $~~150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration~~ 25.0 million (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) and (4) with respect to any lease of assets by the Borrower or a Subsidiary that constitutes a disposition, receipt of lease payments over time on market terms (as determined in good faith by the Borrower) where the payment consideration is at least 75% cash consideration shall, in each case, be deemed to be cash and (v) prior to the Commencement of Operations, the aggregate gross proceeds (including noncash proceeds) of dispositions pursuant to this Section 6.05(g) shall not exceed $10.0 million in any fiscal year of the Borrower; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving corporation; (i) leases, licenses, easements, or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or its Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of the definition of “Net Proceeds”; (l) [reserved]; (m) [reserved]; (n) subject to the last paragraph of this Section 6.05, the Borrower and its Restricted Subsidiaries may enter into any leases, subleases, easements or licenses with respect to any of its Real Property; (o) any disposition made pursuant to the Master Lease Agreement and any Operations Management Agreement; (p) the (i) lease, sublease or license of any portion of the Development to persons who, either directly or through Affiliates of such persons, intend to operate or manage nightclubs, bars, restaurants, recreation, spa, pool, exercise or gym facilities, or entertainment or retail venues or similar or related establishments or facilities within the Development and (ii) the grant of declarations of covenants, conditions and restrictions and/or easements with respect to common area spaces and similar instruments benefiting such tenants of such lease and subleases generally and/or entered into connection with the Development (collectively, the “Venue Easements”, and together with any such leases or subleases, collectively the “Venue Documents”); provided that (A) no Event of Default shall exist and be continuing at the time any such Venue Document is entered into or would occur as a result of entering into such Venue Document, (B) the Loan Parties shall be required to maintain control (which may be through required contractual standards) over the primary aesthetics and standards of service and quality of the business being operated or conducted in connection with any such leased, subleased or licensed space and (C) no Venue Document or operations conducted pursuant thereto would reasonably be expected to materially interfere with, or materially impair or detract from, the operation of the Development; provided further that upon request by the Borrower, the Collateral Agent on behalf of the Secured Parties shall provide the tenant, subtenant or licensee under any Venue Document with a subordination, non-disturbance and attornment agreement substantially in the form of Exhibit G-1 or Exhibit G-2 hereto, as applicable, or in such other form as is reasonably satisfactory to the Collateral Agent and the applicable Loan Party; (q) the dedication of space or other dispositions of property in connection with and in furtherance of constructing structures or improvements reasonably related to the development, construction and operation of the Development; provided that in each case such dedication or other dispositions are in furtherance of, and do not materially impair or interfere with the use or operations (or intended use or operations) of, the Development; (r) the granting of easements, rights of way, rights of access and/or similar rights to any Governmental Authority, utility providers, cable or other communication providers and/or other parties providing services or benefits to the Development, the Real Property held by the Loan Parties or the public at large that (i) do not in any case materially detract from the value of the Real Property, taken as a whole, and (ii) would not reasonably be expected to interfere in any material respect with the construction, development or operation of the Development or the Real Property; and (s) any disposition of Equity Interests of a Subsidiary pursuant to an agreement or other obligation with or to a person (other than the Borrower and its Subsidiaries) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition. Notwithstanding the foregoing provisions of this Section 6.05, subsection (n) above shall be subject to the additional provisos that: (a) no Event of Default shall exist and be continuing at the time such transaction, lease, sublease, easement or license is entered into, (b) such transaction, lease, sublease, easement or license would not reasonably be expected to materially interfere with, or materially impair or detract from, the operation of the Development, and (c) no lease, sublease, easement nor license may provide that a Loan Party subordinate its fee, condominium or leasehold interest to any lessee or any party financing any lessee; provided that the Collateral Agent on behalf of the Secured Parties shall provide the tenant under any such lease or sublease or licensee under any such license or easement holder under such easement (at the request of the Borrower) with a subordination, non-disturbance and attornment agreement substantially in the form of Exhibit G-1 or Exhibit G-2 hereto, as applicable, with such changes as the Collateral Agent may reasonably approve or in such other form as is reasonably satisfactory to the Collateral Agent and the applicable Loan Party. To the extent any Collateral is sold or disposed of in a transaction expressly permitted by this Section 6.05 to any person other than the Borrower or any Subsidiary Loan Party, such Collateral shall be sold or disposed of free and clear of the Liens created by the Loan Documents (provided that, for the avoidance of doubt, with respect to any disposal consisting of an operating lease or license, the underlying property retained by the Borrower or such Subsidiary Loan Party will not be so released), and the Administrative Agent shall take, and is hereby authorized by each Lender to take, any actions reasonably requested by the Borrower in order to evidence the foregoing.

Appears in 1 contract

Samples: Credit Agreement (Caesars Acquisition Co)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any ~~Subsidiary~~Subsidiary or the conversion of accounts receivable to notes receivable, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property by the Borrower or any Subsidiary in the ordinary course of business or consistent with past practice or industry norm or determined in good faith by the Borrower to be no longer used or useful or necessary in the operation of the business of the Borrower or any ~~Subsidiary,~~ Subsidiary or (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is advisable or in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party (unless otherwise permitted by Section 6.04) and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section ~~6.05(n~~6.05(o) are otherwise complied with; (i) leases, assignments, licenses or subleases or sublicenses of any real or personal property in the ordinary course of ~~business~~business or consistent with past practice; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of (i) Securitization Assets including pursuant to Permitted Securitization ~~Financings~~Financings and (ii) any other Securitization Assets subject to Liens securing Permitted Securitization Financing; (m) to the extent constituting a Disposition, any termination, settlement, extinguishment or unwinding of obligations in respect of any Hedging Agreement; (n) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that the aggregate fair market value (as determined in good faith by the Borrower) of such exchanges of assets under this clause (n) shall not exceed in any fiscal year of the Borrower the greater of $5,000,000 and 0.050 times the EBITDAR calculated on a Pro Forma Basis for the then most recently ended Test Period; provided, further, that (i) to the extent the consideration received consists of assets, at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~500,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~18,000,000~~5,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (no) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state ~~thereof,~~ thereof or the District of ~~Columbia or any territory thereof~~Columbia, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by the Subsidiary Guarantee Agreement or a supplement thereto or a supplement to the Holdings Guarantee and Pledge ~~Agreement or the Subsidiary Guarantee~~ Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (op) ~~any Disposition to effect~~ Dispositions in connection with the ~~formation~~ exercise of any ~~Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition~~ subscriptions, options, warrants, puts, calls or other ~~allocation of any assets (including any equity interests of such Delaware Divided LLC~~ rights or ~~Delaware Divided LP) in connection therewith is otherwise permitted hereunder~~commitments pursuant to agreements set forth on Schedule 3.08(b). Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section ~~6.05(g~~6.05(d) ~~or, solely with respect to Sale~~ and ~~Lease-Back Transactions referred to in clause~~ (~~b)(y~~g) ~~of Section 6.03, under Section 6.05(d),~~ shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $~~20,000,000~~ 2,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $~~250,000,000~~ 5,000,000 and ~~0.10~~ 0.050 times the ~~EBITDA~~ EBITDAR calculated on a Pro Forma Basis for the then most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received~~) and~~ ), (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 1,000,000 and ~~0.05~~ 0.010 times the ~~EBITDA~~ EBITDAR calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), (d) the amount of Indebtedness of any Subsidiary that is no longer a Subsidiary as a result of such Asset Sale, to the extent that Holdings, the Borrower and each other Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale and (e) consideration consisting of Indebtedness of the Borrower or a Subsidiary (other than Indebtedness that is subordinated in right of payment to the Loan Obligations) received from persons who are not Holdings, the Borrower or a Subsidiary in connection with the Asset Sale and that is cancelled. For purposes of this Agreement, the fair market value of any assets acquired, leased, exchanged, Disposed of, sold, conveyed or transferred by the Borrower or any Subsidiary shall be determined in good faith by the Borrower and may be determined either, at the option of the Borrower, at the time of such acquisition, lease, exchange, Disposition, sale, conveyance or transfer, as applicable, or as of the date of the definitive agreement with respect to such acquisition, lease, exchange, Disposition, sale, conveyance or transfer, as applicable. Notwithstanding anything to the contrary in this Section 6.05, Borrower and its Subsidiaries shall not, directly or indirectly, sell or otherwise transfer any Intellectual Property that is material to the operations of Borrower and its Subsidiaries, taken as a whole, to any Unrestricted Subsidiary.

Appears in 1 contract

Samples: Credit Agreement (Sun Country Airlines Holdings, Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), effect any Delaware LLC Division or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property by the Borrower or any Subsidiary in the ordinary course of business or consistent with past practice or industry norm or determined in good faith by the Borrower to be no longer used or useful or necessary in the operation of the business of the Borrower or any Subsidiary, (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the ~~Target~~ Company of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary ~~Loan Party~~ in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04)Subsidiary, (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other ~~Subsidiary that is not a Subsidiary Loan Party~~Subsidiary, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), ~~which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party~~ and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise)~~; provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04~~; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) (i) Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section 6.06 and (ii) any Disposition made pursuant to the Merger ~~Agreement~~Agreement or in connection with the Transactions; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section ~~6.05(n~~6.05(o) are otherwise complied with; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of (i) Securitization Assets including pursuant to Permitted Securitization ~~Financings~~Financings and (ii) any other Securitization Assets subject to Liens securing Permitted Securitization Financing; (m) to the extent constituting a Disposition, any termination, settlement or extinguishment or unwinding of obligations in respect of any Hedging Agreement; (n) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) to the extent the consideration received consists of assets, at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~10,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~18,000,000~~15,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (no) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (op) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC ~~or Delaware Divided LP~~ and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any ~~equity interests~~ Equity Interests of such Delaware Divided ~~LLC or Delaware Divided LP~~LLC) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to ~~Loan Parties~~the Borrower or a Subsidiary) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $~~20,000,000~~ 25,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $~~250,000,000~~ 75,000,000 and ~~0.10~~ 0.075 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received~~) and~~ ), (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 215,000,000 and ~~0.05~~ 0.25 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), (d) the amount of Indebtedness of any Subsidiary that is no longer a Subsidiary as a result of such Asset Sale, to the extent that Holdings, the Borrower and each other Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale and (e) consideration consisting of Indebtedness of the Borrower or a Subsidiary (other than Indebtedness that is subordinated in right of payment to the Loan Obligations) received from persons who are not Holdings, the Borrower or a Subsidiary in connection with the Asset Sale and that is cancelled. For purposes of this Section 6.05, the fair market value of any assets Disposed of by the Borrower or any Subsidiary shall be determined in good faith by the Borrower and may be determined either, at the option of the Borrower, at the time of such Disposition or as of the date of the definitive agreement with respect to such Disposition.

Appears in 1 contract

Samples: Incremental Assumption and Amendment Agreement (Rackspace Technology, Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the ~~sale of receivables pursuant to~~ non-recourse sale or factoring ~~arrangements~~of receivables that are owned by any Foreign Subsidiary, in each ~~case~~ case, in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary, (iv) ~~assignments~~ the assignment by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the ~~Merger~~ Purchase Agreement in respect of any breach by ~~the Target~~ any Seller of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any ~~consideration (unless otherwise permitted by Section 6.04)~~consideration, (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the ~~Lenders,~~ Lenders or (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a ~~Subsidiary (unless otherwise permitted by Section 6.04)~~Subsidiary, which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of ~~its~~ the Subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.10; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made either (i) on terms that are substantially no less favorable to such Loan Party, as applicable, than would be obtained in ~~compliance~~ a comparable arm’s-length transaction with a person that is not an Affiliate, as determined by the Board of Directors of such Loan Party in good faith or (ii) be counted as an Investment to the extent of any shortfall below fair market value and permitted to the extent permitted by Section ~~6.04~~6.07; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) (i) Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section 6.06 and (ii) any Disposition made pursuant to the ~~Merger~~ Purchase Agreement; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts ~~receivables~~ receivable financing transaction; (g) ~~other~~ Dispositions of ~~assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with~~ assets not otherwise permitted by this Section ~~2.11(b) to the extent required thereby~~6.05; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~entity; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or of Dispositions or abandonment of Intellectual Property of the Borrower and ~~its~~ the Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the ~~Subsidiaries~~Subsidiaries (including any Disposition of foreign Intellectual Property rights); (k) ~~acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”~~[Reserved]; (l~~) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m~~) any exchange of assets for services and/or other assets ~~used or useful in a Similar Business~~ of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~500,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~18,000,000~~5,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower, as applicable; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this clause (l) shall not exceed, in any fiscal year of the Borrower, the greater of $5,000,000 and 0.046 times EBITDAR calculated on a Pro Forma Basis for the then most recently ended Test Period and (B)) no Default or Event of Default exists or would result therefrom; (m) [Reserved]; (n) Dispositions not otherwise permitted by this Section 6.05; provided, that (Bi) the ~~Net Proceeds~~aggregate gross proceeds thereof shall not exceed, ~~if any~~in any fiscal year of the Borrower, ~~thereof are applied~~ the greater of $5,000,000 and 0.046 times EBITDAR calculated on a Pro Forma Basis for the then most recently ended Test Period, as applicable (it being understood that amounts not fully utilized in ~~accordance with Section 2.11(b) to the extent required thereby~~ any fiscal year may be carried forward and utilized in subsequent fiscal years); (Cii) with respect to any ~~exchange~~ Disposition (in a single transaction or a series of related transactions) of assets constituting Collateral for ~~services~~an aggregate consideration in excess of $500,000, ~~immediately after giving effect thereto~~the Borrower shall have delivered a Borrowing Base Certificate to the Administrative Agent in respect of such Disposition; (iii) no Default or Event of Default exists or would result therefrom and (iv) with respect to any Disposition with aggregate gross proceeds (including noncash proceeds) in excess of $5,000,000, the Borrower shall be in compliance with the Financial Performance Covenant on a Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement)Basis; and (o) other Dispositions; provided, that at the time such Disposition is made, the Payment Conditions are satisfied; provided, further, that with respect to any Disposition (in a single transaction or a series of related transactions) of assets constituting Collateral for an aggregate consideration in excess of $500,000, the Borrower shall have delivered a Borrowing Base Certificate to ~~effect~~ the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests Administrative Agent in respect of such ~~Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder~~Disposition. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no Disposition of assets under ~~Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section~~ Sections 6.05(d), (g), (n) and (o) shall be permitted unless ~~(i)~~ such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) ~~at least 75%~~ no Disposition of ~~the proceeds of~~ assets under Sections 6.05(g), (n) and (o) shall be permitted unless such Disposition (except to Loan Parties) ~~consist of~~ is for at least 75% cash ~~or Permitted Investments~~consideration; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $~~20,000,000~~ 2,000,000 or to other transactions involving assets with a fair market value ~~(as determined in good faith by the Borrower)~~ of not more than the greater of $~~250,000,000~~ 5,000,000 and ~~0.10~~ 0.046 times ~~the EBITDA~~ EBITDAR calculated on a Pro Forma Basis for the then most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), with respect to Dispositions of assets each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) ), and (c) any Designated Non-Cash Consideration received by the Borrower or any of ~~its~~ the Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 1,000,000 and ~~0.05~~ 0.009 times ~~the EBITDA~~ EBITDAR calculated on a Pro Forma Basis for the then most recently ended Test Period ~~ended~~ immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).

Appears in 1 contract

Samples: Asset Based Revolving Credit Agreement (Sun Country Airlines Holdings, Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge ~~into~~ into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or ~~Dispose~~ sell, transfer, lease or otherwise dispose of (in one transaction or in a series of ~~related~~ transactions) all or any part of its assets (whether now owned or hereafter acquired), or ~~Dispose~~ issue, sell, transfer or otherwise dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of ~~related~~ transactions) all or any substantial part of the assets of any other ~~person or division or line of business of a~~ person, except that this Section ~~6.05~~ shall not prohibit: (a) (i) the purchase and ~~Disposition~~ sale of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the ~~Disposition~~ sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any ~~Subsidiary,~~ Subsidiary or (iv) ~~assignments by~~ the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein sale or ~~(v) the Disposition~~ disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary into or with ~~or into~~ the Borrower in a transaction in which the Borrower is the survivor, (ii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary into or with ~~or into~~ any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is ~~or becomes~~ a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any ~~consideration (unless otherwise permitted by Section 6.04)~~consideration, (iii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary that is not a Subsidiary Loan Party into or with ~~or into~~ any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the ~~Lenders,~~ Lenders or (v) any Subsidiary may ~~merge~~ merge, consolidate or ~~consolidate~~ amalgamate into or with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a ~~Subsidiary (unless otherwise permitted by Section 6.04)~~Subsidiary, which shall be a Loan Party if the ~~merging~~ merging, consolidating or ~~consolidating~~ amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.10; (c) ~~Dispositions~~ sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any ~~Dispositions~~ sales, transfers, leases or other dispositions by the Borrower or a Subsidiary Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this ~~clause~~ paragraph (c) shall not in the aggregate exceed, (x) in any fiscal year of the Borrower, $500 million and (y) $1,000,000,000 unless, with respect to clause (y) above, no Default or Event of Default exists or would result therefrom and immediately after giving effect to such sales, transfers, leases or other dispositions, the Senior Secured Leverage Ratio on a Pro Forma Basis shall not be ~~made in compliance with Section 6.04~~greater than 4.5 to 1.0; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) ~~Dispositions~~ the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) sales, transfers, leases, licenses or other ~~Dispositions~~ dispositions of ~~assets~~assets not otherwise permitted by this Section 6.05; provided, that (i) no Default or Event of Default exists or would result therefrom, (ii) with respect to any such sale, transfer, lease or other disposition with aggregate gross proceeds (including noncash proceeds) in excess of $250 million, immediately after giving effect thereto, the Senior Secured Leverage Ratio on a Pro Forma Basis shall not be greater than 4.5 to 1.0, and (iii) the Net Proceeds ~~thereof, if any,~~ thereof are applied in accordance with Section 2.11(b~~) to the extent required thereby~~); (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~corporation; (i) leases, ~~licenses~~ licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) ~~Dispositions~~ sales, leases or other dispositions of inventory ~~or Dispositions or abandonment of Intellectual Property~~ of the Borrower and its Subsidiaries determined ~~in good faith~~ by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of ~~clause~~ paragraph (a) of the definition of “Net Proceeds”; (l) the purchase and ~~Disposition~~ sale or other transfer (including by capital contribution) of ~~Securitization~~ Receivables Assets ~~including~~ pursuant to Permitted ~~Securitization~~ Receivables Financings; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b); (m) any exchange of assets for services and/or other assets ~~used or useful in a Similar Business~~ of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~50 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~18,000,000~~100 million, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) with respect to any such exchange with aggregate gross consideration in excess of $500 million, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance, and (C) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b~~) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance~~); (n) ~~if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom,~~ any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws disposition of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory Real Estate Assets to the ~~Administrative Agent, (3) each Guarantor, unless it is~~ Real Estate Subsidiaries on the ~~other party to such merger or consolidation, shall have by a supplement to~~ Closing Date and dispositions in connection with the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); andPost-Closing CMBS Transaction; (o) any ~~Disposition~~ disposition made pursuant to ~~effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder~~an Operations Management Agreement; ~~provided that~~ and (p) any disposition of Equity Interests of a Subsidiary pursuant to an agreement or other ~~allocation of any~~ obligation with or to a person (other than the Borrower and its Subsidiaries) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (~~including any equity interests~~ having been newly formed in connection with such acquisition), made as part of such ~~Delaware Divided LLC~~ acquisition and in each case comprising all or ~~Delaware Divided LP)~~ a portion of the consideration in ~~connection therewith is otherwise permitted hereunder~~respect of such sale or acquisition. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no ~~Disposition~~ sale, transfer or other disposition of assets ~~under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d),~~ shall be permitted by this Section 6.05 (other than pursuant to paragraph (e), (n) and (o) above and other than sales, transfers, leases, licenses or other dispositions to Loan Parties) unless ~~(i)~~ such ~~Disposition~~ disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section ~~6.04,~~ 6.04 and (ii) no sale, transfer or other disposition of assets in excess of $25 million shall be permitted by paragraph (a), (d) or (g) of this Section 6.05 unless such disposition is for at least 75% ~~of the proceeds of such Disposition (except to Loan Parties) consist of~~ cash ~~or Permitted Investments~~consideration; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of ~~this~~ clause (ii), ~~each of the following shall be deemed to be cash:~~ (a) the amount of any liabilities (as shown on the Borrower’s or ~~such~~ any Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or any Subsidiary of the Borrower (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such ~~assets or are otherwise cancelled in connection with such transaction~~assets, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary of the Borrower from ~~the~~ such transferee that are converted by the Borrower or such Subsidiary of the Borrower into cash within 180 days ~~after~~ of the receipt thereof (to the extent of the cash received~~) and~~ ), (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such ~~Disposition~~ Asset Sale having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this ~~clause~~ paragraph (c) that is at that time outstanding, not to exceed ~~the greater of~~ $~~150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration~~ 500 million (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) and (d) with respect to any lease of assets by the Borrower or a Subsidiary that constitutes a disposition, receipt of lease payments over time on market terms (as determined in good faith by the Borrower) where the payment consideration is at least 75% cash consideration shall, in each case, be deemed to be cash. To the extent any Collateral is sold or disposed of in a transaction expressly permitted by this Section 6.05 to any person other than the Borrower or any Subsidiary Loan Party, such Collateral shall be sold or disposed of free and clear of the Liens created by the Loan Documents (provided that, for the avoidance of doubt, with respect to any disposal consisting of an operating lease or license, the underlying property retained by the Borrower or such Subsidiary Loan Party will not be so released), and the Administrative Agent shall take, and is hereby authorized by each Lender to take, any actions reasonably requested by the Borrower in order to evidence the foregoing.

Appears in 1 contract

Samples: Amendment Agreement (CAESARS ENTERTAINMENT Corp)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, liquidate, wind up or ~~Dispose~~ dissolve itself (or suffer any liquidation or dissolution), or change its jurisdiction of organization to a jurisdiction outside of the United States, or convey, sell, lease or sub lease (as lessor or sublessor), exchange, transfer or otherwise dispose of (in one transaction or in a series of ~~related~~ transactions) all or any part of its assets or property of any kind whatsoever (whether now owned or hereafter acquired), or ~~Dispose~~ issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of ~~related~~ transactions) all or any substantial part of the assets or stock of any other person or ~~division~~ any division, unit or ~~line of~~ business of a any person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and ~~Disposition of inventory, or the~~ sale of ~~receivables pursuant to non~~raw materials and inventory (including, without limitation, work-~~recourse factoring arrangements, in each case~~ in-process and finished goods inventory) in the ordinary course of business by the Borrower or any ~~Subsidiary~~Subsidiary (including, without limitation, from or to a Verso Entity), (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any ~~Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower)~~Subsidiary, (iii) the ~~Disposition~~ sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary, or (iv) ~~assignments by~~ the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition sale of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary ~~with~~ into (or ~~into~~ with) the Borrower in a transaction in which the Borrower is the survivor, (ii) the ~~merger~~ merger, consolidation or amalgamation or consolidation of any Subsidiary into or with ~~or into~~ any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any ~~consideration (unless otherwise permitted by Section 6.04)~~consideration, (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party into or with ~~or into~~ any other Subsidiary that is not a Subsidiary Loan Party, or (iv) the ~~liquidation~~ liquidation, winding up or dissolution or change in form of entity of any Subsidiary (other than a Loan Party) if the Borrower determines in good faith that such liquidation, winding up, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to any Agent or the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) ~~Dispositions~~ sales, transfers, leases or other dispositions to the Borrower or a Subsidiary Loan Party (upon voluntary liquidation or otherwise); ~~provided~~provided that immediately after giving effect to any sale, ~~that any Dispositions by a Loan Party to a Subsidiary~~ transfer, lease or other disposition made under this paragraph (c), Excess Availability shall not be less than (i) from the Closing Date until the date that is ~~not a Subsidiary Loan Party in reliance on this clause~~ twelve (c12) ~~shall be made in compliance with Section 6.04~~months after the Closing Date, $15.0 million, or (ii) thereafter, $20.0 million; (d~~) Sale and Lease-Back Transactions permitted by Section 6.03; (e) (i~~) Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and ~~Restricted Payments~~ dividends permitted by Section ~~6.06~~ 6.06, Capital Expenditures and ~~(ii) any Disposition made pursuant to~~ the ~~Merger Agreement~~transactions listed on Schedule 3.07(d); (fe) ~~Dispositions~~ the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (f) sales, transfers, leases, licenses or other dispositions of assets not otherwise permitted by this Section 6.05; provided that (i) no Default or Event of Default exists or would result therefrom, (ii) immediately after giving effect to any sale, transfer, lease or other disposition made under this paragraph (f), Excess Availability shall not be less than (A) from the Closing Date until the date that is twelve (12) months after the Closing Date, $15.0 million, or (B) thereafter, $20.0 million, and (iii) any sales, transfers, leases, licenses or other dispositions of assets made in reliance on this paragraph (f) shall not in the aggregate exceed $20.0 million during the term of this Agreement; (g) sales, transfers or other ~~Dispositions~~ dispositions of ~~assets~~assets pursuant to any Approved Bankruptcy Court Order, permitting de minimis asset dispositions without further order of the Bankruptcy Court; ~~provided~~provided that any sales, ~~that~~ transfers or other dispositions of assets made in reliance on this paragraph (g) shall not in the ~~Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to~~ aggregate exceed $1.0 million during the ~~extent required thereby~~term of this Agreement; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with; (i) leases, ~~licenses~~ licenses, or subleases or sublicenses of any real or personal property granted by the Borrower or any Subsidiary Loan Party to others in the ordinary course of business, to the extent not otherwise prohibited by this Agreement and not interfering in any material respect with the business of Borrower or such Subsidiary Loan Party; (ji) ~~Dispositions~~ sales, leases or other dispositions of inventory ~~or Dispositions or abandonment of Intellectual Property~~ of the Borrower and ~~its~~ the Subsidiaries determined ~~in good faith~~ by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (j) [Reserved]; (k) ~~acquisitions~~ exchanges of assets between CWPC and ~~purchases made with~~ one or more of the ~~proceeds~~ Borrower and any Subsidiary Loan Party through the division of land between respective mill, utility and hydroelectric assets for the owned Real Property located at Wisconsin Rapids, Wisconsin; provided that, unless otherwise agreed by the Administrative Agent (x) the aggregate fair market value of the Real Property or other assets being received by the applicable Loan Party is approximately equal to or greater than the fair market value of the assets being transferred by such Loan Party in such exchange, (y) the exchange of assets by the parties to the transaction is substantially simultaneous, and (z) the assets received by such Loan Party shall not be subject to any ~~Asset Sale~~ contractual obligation that limits the ability of such Loan Party to create, incur, assume or suffer to exist any Lien on such assets to secure the Loan Obligations (such transactions pursuant to ~~the first proviso of~~ this clause (~~a) of~~ k), collectively, the ~~definition of~~ “~~Net Proceeds~~Permitted Land Swaps”); (l) ~~the purchase and Disposition (including by capital contribution) of Securitization Assets including~~ subject to Section 6.16, transactions pursuant to ~~Permitted Securitization Financings~~the Shared Services Agreement (and, after the entry of the SSA Order, such transactions to the extent permitted by the SSA Order); (m) purchases described in Schedule 6.05; and (n) sales or other dispositions of xxxxx, including through the sale of Equity Interests of any ~~exchange of assets for services and/or other assets used~~ Subsidiary owning or ~~useful in a Similar Business of comparable or greater value~~operating any such mill; ~~provided,~~ provided that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (Bii) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower such sales or other dispositions shall be in Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be made pursuant to an ~~entity organized or existing under the laws~~ order of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form Bankruptcy Court reasonably ~~satisfactory~~ acceptable to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6iii) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition no sale or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), disposition shall be permitted by this paragraph (n) unless ~~(i)~~ such ~~Disposition~~ sale or other disposition is for ~~fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii)~~ at least 75% ~~of the proceeds of such Disposition (except to Loan Parties) consist of~~ cash ~~or Permitted Investments~~consideration; ~~provided,~~ provided that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of ~~its~~ the Subsidiaries in such ~~Disposition~~ sale or other disposition having an aggregate fair market ~~value (as determined in good faith by the Borrower)~~value, taken together with all other Designated Non-Cash Consideration received pursuant to this ~~clause~~ paragraph (cn) that is at that time outstanding, not to exceed $40.0 million at the ~~greater~~ time of ~~$150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to~~ the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be cash. Notwithstanding anything to the contrary contained in this Section 6.05, (i) except for any sale of all (but not a portion of) the Equity Interest of any Subsidiaries in compliance with the provisions of Section 6.05 or a transaction permitted by Section 6.05(b), (c) or (n), no sale, transfer or other disposition of any Equity Interests of any Subsidiary shall be permitted by this Section 6.05, (ii) no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases, licenses or other dispositions to Loan Parties pursuant to paragraph (c) hereof and sales or other dispositions pursuant to paragraph (n) hereof) unless such disposition is for fair market value, and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (f) of this Section 6.05 unless such disposition is for at least 90% cash consideration; provided that the provisions of clause (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $1.5 million (provided that such transactions do not involve assets with a fair market value of more than $3.0 million in the aggregate for all such transactions during the term of this Agreement). To the extent that any Collateral is disposed of in a transaction expressly permitted by this Section 6.05 to any person other than Holdings, the Borrower or any Subsidiary Loan Party, such Collateral (but not the proceeds thereof) shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent and the Collateral Agent shall take, and shall be authorized by each Lender to take, any actions reasonably requested by the Borrower in order to evidence the foregoing.

Appears in 1 contract

Samples: Asset Based Revolving Credit Agreement (Verso Paper Holdings LLC)

Appears in 1 contract

Samples: Credit Agreement (Great Wolf Resorts, Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge ~~into~~ into, amalgamate with or consolidate with any other ~~person~~Person, or permit any other ~~person~~ Person to merge ~~into~~ into, amalgamate with or consolidate with it, or ~~Dispose~~ sell, transfer, lease or otherwise dispose of (in one transaction or in a series of ~~related~~ transactions) all or any part of its assets (whether now owned or hereafter acquired), or ~~Dispose~~ issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or any Restricted Subsidiary or preferred equity interests of the Borrower or any Restricted Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of ~~related~~ transactions) all or substantially all of the assets of any other ~~person~~ Person or ~~division or~~ a line of business of a ~~person~~Person, except that this Section ~~6.05~~ shall not prohibit: (a) (i) the purchase and ~~Disposition~~ sale of inventory, or supplies, materials and equipment and the purchase and sale of ~~receivables pursuant to non-recourse factoring arrangements~~rights or licenses or leases of intellectual property, in each case in the ordinary course of business by the Borrower or any ~~Subsidiary~~of its Material Subsidiaries, (ii) the ~~acquisition or lease (pursuant to an operating lease)~~ sale of any other asset in the ordinary course of business by the Borrower or any ~~Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower)~~of its Material Subsidiaries, (iii) the ~~Disposition~~ sale of surplus, ~~obsolete, damaged~~ obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any ~~Subsidiary,~~ of its Material Subsidiaries or (iv) ~~assignments by~~ the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition sale of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be ~~continuing or would result therefrom~~continuing, (i) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Restricted Subsidiary ~~with or~~ of the Borrower into the Borrower in a transaction in which the Borrower is the ~~survivor~~surviving corporation, (ii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Restricted Subsidiary of the Borrower into or with ~~or into~~ any ~~Subsidiary~~ Loan Party in a transaction in which the surviving or resulting entity is ~~or becomes~~ a ~~Subsidiary~~ Loan Party and, in the case of each of clauses (i) and (ii), no ~~person~~ Person other than the Borrower or a ~~Subsidiary~~ Loan Party receives any ~~consideration (unless otherwise permitted by Section 6.04)~~consideration, (iii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Restricted Subsidiary of the Borrower that is not a ~~Subsidiary~~ Loan Party into or with ~~or into~~ any other Restricted Subsidiary of the Borrower that is not a ~~Subsidiary~~ Loan Party, (iv) the ~~liquidation~~ liquidation, winding up, or dissolution or change in form of entity of any Restricted Subsidiary of the Borrower if the Borrower determines in good faith that such liquidation, winding up, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) ~~any Subsidiary may merge or consolidate with any other person~~ the change in ~~order to effect an Investment permitted pursuant to Section 6.04 so long as~~ form of entity of the ~~continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party~~ Borrower if the ~~merging or consolidating Subsidiary was a Loan Party~~ Borrower determines in good faith that such change in form is in the best interests of the Borrower and ~~which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10~~ is not materially disadvantageous to the Lenders or (vi) the merger, consolidation or amalgamation of any ~~Subsidiary may merge~~ Loan Party into or ~~consolidate~~ with any other ~~person~~ Loan Party; provided that in ~~order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~the case of any such merger, consolidation or amalgamation of the Borrower into or with another Loan Party, the Borrower shall be the surviving entity; (c) ~~Dispositions~~ sales, transfers, leases or other dispositions to the Borrower or a Subsidiary of the Borrower (upon voluntary liquidation or otherwise); ~~provided~~provided that, subject to compliance with the MLP Transfer Requirements and the other conditions set forth below in this clause (c), the Borrower or any Restricted Subsidiary may sell, transfer or otherwise dispose of assets to the MLP Entity (any such sale, transfer, lease or disposal, an “MLP Transfer”) in an amount not to exceed (i) for any MLP Transfer occurring on the date of the formation or in connection with the initial capitalization of the MLP Entity, 33.3% of Consolidated Total Assets as of the date of any such MLP Transfer and (ii) for all MLP Transfers from the Closing Date until the Term Loan B Maturity Date, 40% of the sum of (x) Consolidated Total Assets immediately prior to any such MLP Transfer plus (y) the book value of any assets previously subject to an MLP Transfer (such amount, the “Aggregate Percentage Disposed”); provided that (x) the Borrower or such Restricted Subsidiary receives consideration at least equal to the fair market value of the assets subject to the MLP Transfer and such value is confirmed by the independent directors of the boards of directors of each of the Borrower and the MLP Entity and in a written opinion as to fairness to the Borrower or such Restricted Subsidiary of such transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of recognized industry standing and delivered to the Administrative Agent (for distribution to the Lenders) and not less than 100% of such Net Proceeds are applied to the prepayment of the Loans in accordance with Section 2.11(c)(i) and (y) immediately prior to and after giving effect to any such MLP Transfer, the Borrower is in pro forma compliance with the Financial Performance Covenants and no Default or Event of Default shall have occurred and be continuing; provided further that any ~~Dispositions~~ sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary of the Borrower that is not a Loan Party shall be made in compliance with Section 6.07; provided further that, other than with respect to MLP Transfers, the aggregate gross proceeds of any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a ~~Subsidiary~~ Loan Party in reliance on upon this ~~clause~~ paragraph (c) and the aggregate gross proceeds of any or all assets sold, transferred or leased in reliance upon paragraph (g) below shall ~~be made~~ not exceed, in ~~compliance with Section 6.04~~any fiscal year of the Borrower, 5% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, ~~Permitted~~ Liens ~~and Restricted Payments~~ permitted by Section ~~6.06~~ 6.02 and ~~(ii) any Disposition made pursuant to the Merger Agreement~~Dividends permitted by Section 6.06; (f) ~~Dispositions~~ the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) sales, transfers, leases or other ~~Dispositions~~ dispositions of ~~assets~~assets not otherwise permitted by this Section 6.05; ~~provided~~provided that the aggregate gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in reliance upon this paragraph (g) shall not exceed, in any fiscal year of the Borrower, U.S.$20.0 million; provided further that the Net Proceeds ~~thereof, if any,~~ thereof are applied in accordance with Section ~~2.11(b) to the extent required thereby~~2.11(c)(i); and provided further that after giving effect thereto, no Default or Event of Default shall have occurred; (h) ~~Permitted Business Acquisitions (including~~ any ~~merger,~~ merger or consolidation ~~or amalgamation~~ in ~~order to effect~~ connection with a Permitted Business Acquisition~~); provided~~, provided that following any such ~~merger,~~ merger or consolidation ~~or amalgamation~~ (i) involving the Borrower, the Borrower is the surviving corporation and (ii) involving a Restricted Subsidiary, the surviving or resulting entity ~~or the requirements of Section 6.05(n) are otherwise complied with~~shall be a Loan Party; (i) ~~leases, licenses~~ licensing and cross-licensing arrangements involving any technology or ~~subleases~~ other intellectual property of the Borrower or ~~sublicenses of~~ any ~~real or personal property~~ Restricted Subsidiary in the ordinary course of business;; and (j) ~~Dispositions~~ abandonment, cancellation or disposition of ~~inventory or Dispositions or abandonment of Intellectual Property~~ any intellectual property of the Borrower ~~and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary~~ in the ~~operation~~ ordinary course of ~~the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant~~ business. Notwithstanding anything to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange of assets for services and/or other assets used or useful contrary contained in ~~a Similar Business of comparable or greater value; provided~~Section 6.05 above, ~~that~~ (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower ~~with respect to such fair market value and (iii) in the event of a swap with a fair market value (~~may, so long as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, ~~any Subsidiary~~ sell, grant or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws otherwise issue Equity Interests to members of ~~the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations~~ management of the Borrower ~~under~~ or any of the Subsidiaries of the Borrower that are Loan Parties pursuant to stock option, stock ownership, stock incentive or similar plans, (ii) no sale, transfer or other disposition of assets shall be permitted by this ~~Agreement~~ Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value; provided that any transfer to the MLP Entity shall be for not less than the fair market value, as confirmed by the independent directors of the boards of directors of each of the Borrower and the ~~other Loan Documents pursuant to~~ MLP Entity and in a ~~supplement hereto~~ written opinion issued by an accounting, appraisal or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee investment banking firm of recognized industry standing and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel for distribution to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel Lenders), (~~it being understood that if the foregoing are satisfied~~iii) no sale, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition transfer or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition disposition of assets ~~under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d),~~ shall be permitted ~~unless~~ by paragraph (~~i) such Disposition is for fair market value~~ a), (~~as determined in good faith by the Borrower~~d), or ~~if not~~ (j) of this Section 6.05 unless such disposition is for ~~fair market value, the shortfall is permitted as an Investment under Section 6.04,~~ at least 80% cash consideration and (iiiv) no sale, transfer or other disposition of assets in excess of U.S.$5.0 million shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 7580% ~~of the proceeds of such Disposition (except to Loan Parties) consist of~~ cash ~~or Permitted Investments~~consideration; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, provided that for purposes of ~~this clause~~ clauses (iiiii) and (iv), ~~each of the following shall be deemed to be cash: (a)~~ the amount of any ~~liabilities~~ secured Indebtedness or other Indebtedness of a Subsidiary of the Borrower that is not a Loan Party (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that ~~are~~ is assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (shall be deemed to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value)be cash.

Appears in 1 contract

Samples: Credit Agreement (SemGroup Corp)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of the Borrower or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the ~~sale of receivables pursuant to~~ non-recourse sale or factoring ~~arrangements~~of receivables that are owned by any Foreign Subsidiary, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary, (iv) ~~assignments~~ the assignment by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the ~~Target~~ Seller of its representations and warranties set forth ~~therein~~ therein, or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any ~~consideration (unless otherwise permitted by Section 6.04)~~consideration, (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the ~~Lenders,~~ Lenders or (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a ~~Subsidiary (unless otherwise permitted by Section 6.04)~~Subsidiary, which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.10; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made either (i) on terms that are substantially no less favorable to such Loan Party, as applicable, then would be obtained in ~~compliance~~ a comparable arm’s-length transaction with a person that is not an Affiliate, as determined by the Board of Directors of such Loan Party in good faith or (ii) be counted as an Investment to the extent of any shortfall below fair market value and permitted to the extent permitted by Section ~~6.04~~6.07; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts ~~receivables~~ receivable financing transaction; (g) ~~other~~ Dispositions of ~~assets~~assets (other than Shared ABL Collateral) not otherwise permitted by this Section 6.05; provided, that the ~~Net Proceeds~~ net cash proceeds thereof, if any, are applied in accordance with Section ~~2.11(b~~2.12(c) of the First Lien Credit Agreement (or any analogous provision of any Permitted Refinancing Indebtedness in respect thereof) to the extent required thereby; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~corporation; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; provided, that the net cash proceeds thereof, if any, are applied in accordance with Section 2.12(c) of the First Lien Credit Agreement (or any analogous provision of any Permitted Refinancing Indebtedness in respect thereof) to the extent required thereby; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”” in the First Lien Credit Agreement (or any analogous provision of any Permitted Refinancing Indebtedness in respect thereof); (l) ~~the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings~~[Reserved]; (m) any exchange of assets for services and/or other assets ~~used or useful in a Similar Business~~ of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~10,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~18,000,000~~20,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result ~~therefrom,~~ therefrom and (B) the ~~Net Proceeds~~net cash proceeds thereof, if any, ~~thereof~~ are applied in accordance with Section ~~2.11(b~~2.12(c) of the First Lien Credit Agreement (or any analogous provision of any Permitted Refinancing Indebtedness in respect thereof) to the extent required ~~thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance;~~thereby; and (n) ~~if at~~ Dispositions not otherwise permitted by this Section 6.05; provided, that the ~~time~~ aggregate gross proceeds thereof shall not exceed, in any Fiscal Year of the Borrower, $20,000,000; provided further, that (A) amounts not fully utilized in any Fiscal Year may be carried forward and ~~immediately after giving effect thereto~~ utilized in the next Fiscal Year and (B) no Default or Event of Default ~~shall have~~ has occurred and be is continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) ~~any~~ other Dispositions, provided, that at the time such Disposition ~~to effect~~ is made, the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunderPayment Conditions are satisfied. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) ~~or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d),~~ shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), ~~or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04,~~ and (ii) ~~at least 75% of the proceeds of~~ such Disposition (except to Loan Parties) ~~consist of~~ is for at least 75% cash ~~or Permitted Investments~~consideration; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $~~20,000,000~~ 10,000,000 or to other transactions involving assets with a fair market value ~~(as determined in good faith by the Borrower)~~ of not more than the greater of $~~250,000,000~~ 30,000,000 and ~~0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period~~ 3.0% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such ~~assets~~ assets, or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) ), and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 30,000,000 and ~~0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended~~ 3.0% of Consolidated Total Assets immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).

Appears in 1 contract

Samples: Asset Based Revolving Credit Agreement (DS Services of America, Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any ~~Subsidiary~~Subsidiary or the conversion of accounts receivable to notes receivable, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property by the Borrower or any Subsidiary in the ordinary course of business or consistent with past practice or determined in good faith by the Borrower to be no longer used or useful or necessary in the operation of the business of the Borrower or any Subsidiary, or (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any ~~Subsidiary~~ Subsidiary, if the Borrower determines in good faith that such liquidation, dissolution or change in form is advisable or in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party (unless otherwise permitted by Section 6.04) and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) ~~other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby~~[reserved]; (h) Permitted ~~Business~~ Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted ~~Business~~ Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section ~~6.05(n~~6.05(o) are otherwise complied with; (i) leases, assignments, licenses or subleases or sublicenses of any real or personal property in the ordinary course of ~~business~~business or consistent with past practice; (j) Dispositions of inventory or sales, transfers, dedication to the public, abandonment or other Dispositions ~~or abandonment~~ of Intellectual Property of the Borrower and its Subsidiaries determined ~~in good faith~~ by the management of the ~~Borrower~~ Borrower, in its reasonable business judgment, to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) ~~the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings~~[reserved]; (m) to the extent constituting a Disposition, any termination, settlement, extinguishment or unwinding of obligations in respect of any Hedging Agreement; (n) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) to the extent the consideration received consists of assets, at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~3,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~18,000,000~~6,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of ~~Holdings or~~ the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (no) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the ~~Holdings Guarantee and Pledge Agreement or the~~ Subsidiary Guarantee ~~Agreement, as applicable,~~ Agreement confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (65) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement)~~; and~~; (op) Dispositions in connection with the exercise of any subscriptions, options, warrants, puts, calls or other rights or commitments pursuant to agreements set forth on Schedule 3.08(b); (q) any Disposition ~~to effect the formation of any Subsidiary~~ that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, (ii) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (iiiii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash, cash equivalents, or Permitted Investments; provided, that the provisions of this clause (iiq) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $~~20,000,000~~ 6,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $~~250,000,000~~ 12,000,000 and ~~0.10~~ 0.20 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (iiq), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received~~) and~~ ), (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 30,000,000 and ~~0.05~~ 0.50 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), (d) the amount of Indebtedness of any Subsidiary that is no longer a Subsidiary as a result of such Asset Sale, to the extent that the Borrower and each other Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale and (e) consideration consisting of Indebtedness of the Borrower or a Subsidiary (other than Indebtedness that is subordinated in right of payment to the Loan Obligations) received from persons who are not the Borrower or a Subsidiary in connection with the Asset Sale and that is cancelled; (r) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture investors set forth in joint venture arrangements; and (s) the lapse or abandonment in the ordinary course of business of any registrations or applications for registration of any immaterial Intellectual Property that is, in the reasonable good faith judgment of Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Borrower and its Subsidiaries taken as a whole. For purposes of this Agreement, the fair market value of any assets acquired, leased, exchanged, Disposed of, sold, conveyed or transferred by the Borrower or any Subsidiary shall be determined in good faith by the Borrower and may be determined either, at the option of the Borrower, at the time of such acquisition, lease, exchange, Disposition, sale, conveyance or transfer, as applicable, or as of the date of the definitive agreement with respect to such acquisition, lease, exchange, Disposition, sale, conveyance or transfer, as applicable.

Appears in 1 contract

Samples: Credit Agreement (Open Lending Corp)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (~~a) (~~i) the purchase and Disposition of inventory~~, or the sale of receivables pursuant to non-recourse factoring arrangements~~, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) Permitted Non-Recourse Factoring Transactions, (iii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (~~iii~~iv) the Disposition of surplus, obsolete, damaged or worn out ~~equipment or~~ equipment, (v) the Disposition of other property in the ordinary course of business by the Borrower or any ~~Subsidiary, (iv) assignments~~ Subsidiary or determined in good faith by the Borrower ~~and~~ to be no longer useful or necessary in the operation of the business of the Borrower or any ~~Subsidiary in connection with insurance arrangements of their rights and remedies under~~Subsidiary, ~~and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein~~ or (vvi) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, so long as all assets of such Subsidiary upon dissolution thereof are transferred to the Borrower or any Subsidiary Loan Party, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party (unless otherwise permitted by Section 6.04) and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04; (d) ~~Sale and Lease-Back Transactions permitted by Section 6.03~~[reserved]; (e~~) (i~~) Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of ~~assets~~assets in an aggregate amount not to exceed over the term of this Agreement the greater of $30,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted Business Acquisitions permitted under Section 6.04(k) (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~entity; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in ~~good faith~~ the reasonable business judgment by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) ~~acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”~~Sale/Leaseback Transactions permitted under Section 6.03; (l) to the ~~purchase and Disposition (including by capital contribution)~~ extent constituting a Disposition, any termination, settlement or extinguishment of ~~Securitization Assets including pursuant to Permitted Securitization Financings~~obligations in respect of any Hedging Agreement; (m) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~5,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~18,000,000~~10,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of ~~Holdings or~~ the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required ~~thereby and~~ thereby, (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall ~~be in~~ have a Net Secured Leverage Ratio of 3.75 times or less, and (D) the aggregate amount of exchanges of assets pursuant to this clause (m) shall not exceed the greater of $15,000,000 and 0.05 times the EBITDA calculated on a Pro Forma ~~Compliance~~Basis for the then most recently ended Test Period; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary ~~or any other person~~ may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) ~~any Disposition to effect~~ Dispositions of DVD and Blu-ray movies and video games and other goods held for rental or sale in the ~~formation~~ ordinary course of ~~any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP~~ operation of the business of the Borrower and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunderthe Subsidiaries. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) ~~or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d),~~ shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $~~20,000,000~~ 2,500,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $~~250,000,000~~ 10,000,000 and ~~0.10~~ 0.033 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 5,000,000 and ~~0.05~~ 0.0165 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be cash.

Appears in 1 contract

Samples: Credit Agreement (Chicken Soup for the Soul Entertainment, Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the ~~Borrower~~ Borrowers or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the ~~Borrower~~ Borrowers or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the ~~Borrower~~Borrowers), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the ~~Borrower~~ Borrowers or any Subsidiary, (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the ~~Borrower~~ Borrowers in a transaction in which the ~~Borrower is~~ Borrowers are the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the ~~Borrower~~ Borrowers or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the ~~Borrower determines~~ Borrowers determine in good faith that such liquidation, dissolution or change in form is in the best interests of the ~~Borrower~~ Borrowers and is not materially disadvantageous to the ~~Lenders,~~ Lenders or (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of ~~its~~ their Subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.10; (c) Dispositions to the ~~Borrower~~ Borrowers or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made either (i) on terms that are substantially no less favorable to such Loan Party, as applicable, than would be obtained in ~~compliance~~ a comparable arm’s-length transaction with a person that is not an Affiliate, as determined by the Board of Directors of such Loan Party in good faith or (ii) be counted as an Investment to the extent of any shortfall below fair market value and permitted to the extent permitted by Section 6.04; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) ~~other~~ Dispositions of ~~assets~~assets not otherwise permitted by this Section 6.05; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b~~) to the extent required thereby~~); (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving ~~the~~ a Borrower, ~~the~~ such Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~corporation; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the ~~Borrower~~ Borrowers and ~~its~~ their Subsidiaries determined in good faith by the management of the ~~Borrower~~ Borrowers to be no longer useful or necessary in the operation of the business of the ~~Borrower~~ Borrowers or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of ~~Securitization~~ Receivables Assets including pursuant to Permitted ~~Securitization~~ Receivables Financings;; and (m) any exchange of assets for services and/or other assets ~~used or useful in a Similar Business~~ of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the ~~Borrower~~Borrowers) in excess of $~~12,000,000~~10,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the ~~Borrower~~ Borrowers with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the ~~Borrower~~Borrowers) in excess of $~~18,000,000~~15,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the ~~Borrower~~Borrowers; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this clause (m) shall not exceed, in any fiscal year of the Borrowers, the greater of $150,000,000 and 15.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), (B) no Default or Event of Default exists or would result therefrom, and (BC) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b~~) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance~~); (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that [Reserved]; (Ao) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement)[Reserved]; and (op) ~~any Disposition to effect~~ the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunderTransactions. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no Disposition of assets under Section 6.05(d) and Section 6.05(g) ~~or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d),~~ shall be permitted unless ~~(i)~~ such Disposition is for fair market value (as determined in good faith by the ~~Borrower~~Borrowers), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) ~~at least 75%~~ no Disposition of ~~the proceeds of~~ assets under Section 6.05(g) shall be permitted unless such Disposition (except to Loan Parties) ~~consist of~~ is for at least 75% cash ~~or Permitted Investments~~consideration; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the ~~Borrower~~Borrowers) of less than $~~20,000,000~~ 15,000,000 or to other transactions involving assets with a fair market value ~~(as determined in good faith by the Borrower)~~ of not more than the greater of $~~250,000,000~~ 75,000,000 and ~~0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period~~ 7.5% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the ~~Borrower’s~~ Borrowers’ or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the ~~Borrower~~ Borrowers or such Subsidiary from the transferee that are converted by the ~~Borrower~~ Borrowers or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the ~~Borrower~~ Borrowers or any of ~~its~~ their Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the ~~Borrower~~Borrowers), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 100,000,000 and ~~0.05 times~~ 10.0% of Consolidated Total Assets as of the ~~EBITDA calculated on a Pro Forma Basis for~~ end of the ~~Test Period ended~~ fiscal quarter immediately prior to the receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) (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).

Appears in 1 contract

Samples: First Lien Credit Agreement (Zurn Water Solutions Corp)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), effect any Delaware LLC Division or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property by the Borrower or any Subsidiary in the ordinary course of business by of the Borrower or any ~~Subsidiary,~~ Subsidiary or (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary ~~Loan Party~~ in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04)Subsidiary, (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other ~~Subsidiary that is not a Subsidiary Loan Party~~Subsidiary, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), ~~which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party~~ and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise)~~; provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04~~; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section ~~6.05(n~~6.05(o) are otherwise complied with; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of (i) Securitization Assets including pursuant to Permitted Securitization Financings, (ii) any other Securitization Assets subject to Liens securing Permitted Securitization Financing and (iii) receivables in connection with a receivables sale or financing; (m) to the extent constituting a Disposition, any termination, settlement or extinguishment or unwinding of obligations in respect of any Hedging Agreement; (n) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) to the extent the consideration received consists of assets, at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~10,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~18,000,000~~20,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (no) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (op) other Dispositions of assets by the Borrower or any Subsidiary in an aggregate amount not to exceed the greater of $30,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; (q) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC ~~or Delaware Divided LP~~ and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any ~~equity interests~~ Equity Interests of such Delaware Divided ~~LLC or Delaware Divided LP~~LLC) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to ~~Loan Parties~~the Borrower or a Subsidiary) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $~~20,000,000~~ 25,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $~~250,000,000~~ 30,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received~~) and~~ ), (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 75,000,000 and ~~0.05~~ 0.25 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), (d) the amount of Indebtedness of any Subsidiary that is no longer a Subsidiary as a result of such Asset Sale, to the extent that Holdings, the Borrower and each other Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale and (e) consideration consisting of Indebtedness of the Borrower or a Subsidiary (other than Indebtedness that is subordinated in right of payment to the Loan Obligations) received from persons who are not Holdings, the Borrower or a Subsidiary in connection with the Asset Sale and that is cancelled. For purposes of this Section 6.05, the fair market value of any assets Disposed of by the Borrower or any Subsidiary shall be determined in good faith by the Borrower and may be determined either, at the option of the Borrower, at the time of such Disposition or as of the date of the definitive agreement with respect to such Disposition. Notwithstanding the foregoing, (i) in no event shall any Loan Party Dispose of any Material Intellectual Property to any Subsidiary (including, for the avoidance of doubt, any Unrestricted Subsidiary) that is not a Loan Party and (ii) in no event shall any Subsidiary Dispose of Material Intellectual Property to any Unrestricted Subsidiary.

Appears in 1 contract

Samples: First Lien Credit Agreement (Hostess Brands, Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or ~~Dispose~~ sell, transfer, lease or otherwise dispose of (in one transaction or in a series of ~~related~~ transactions) all or any part of its assets (whether now owned or hereafter acquired), or ~~Dispose~~ issue, sell, transfer or otherwise dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of ~~related~~ transactions) all or any substantial part of the assets of any other ~~person or division or line of business of a~~ person, except that this Section 6.05 shall not prohibit: (~~a) (~~i) the purchase and ~~Disposition of inventory, or the~~ sale of ~~receivables pursuant to non-recourse factoring arrangements, in each case~~ inventory in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any ~~Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower)~~Subsidiary, (iii) the ~~Disposition~~ sale of surplus, ~~obsolete, damaged~~ obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any ~~Subsidiary,~~ Subsidiary or (iv) ~~assignments by~~ the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition sale of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be ~~continuing or would result therefrom~~continuing, (i) the merger ~~or consolidation~~ of any Subsidiary ~~with or~~ into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary into or with ~~or into~~ any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is ~~or becomes~~ a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any ~~consideration (unless otherwise permitted by Section 6.04)~~consideration, (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party into or with ~~or into~~ any other Subsidiary that is not a Subsidiary Loan ~~Party,~~ Party or (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than the Borrower) if the Borrower determines in good faith that such ~~liquidation,~~ liquidation or dissolution ~~or change in form~~ is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) ~~Dispositions~~ sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); ~~provided,~~ provided that any ~~Dispositions~~ sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party ~~in reliance on this clause (c)~~ shall be made in compliance with Section ~~6.04~~6.07; provided, further, that the aggregate gross proceeds of sales, transfers, leases or other dispositions made outside the ordinary of business by Loan Parties to Subsidiaries that are not Subsidiary Loan Parties in reliance upon this paragraph (c) shall not exceed, in any fiscal year of the Borrower, $10.0 million; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, ~~Permitted~~ Liens ~~and Restricted Payments~~ permitted by Section ~~6.06~~ 6.02 and ~~(ii) any Disposition made pursuant to the Merger Agreement~~Dividends permitted by Section 6.06; (f) ~~Dispositions~~ the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) sales, transfers, leases or other ~~Dispositions~~ dispositions of ~~assets~~assets not otherwise permitted by this Section 6.05; provided that the aggregate gross proceeds (including non-cash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in reliance upon this paragraph (g) shall not exceed, in any fiscal year of the Borrower, the greater of $50.0 million and 4.25% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements are required to be delivered pursuant to Section 5.04; provided, further, that the Net Proceeds ~~thereof, if any,~~ thereof are applied in accordance with Section 2.11(b~~) to the extent required thereby~~); (h) ~~Permitted Business Acquisitions (including~~ any ~~merger,~~ merger or consolidation ~~or amalgamation~~ in ~~order to effect~~ connection with a Permitted Business Acquisition); ~~provided,~~ provided that following any such ~~merger,~~ merger or consolidation ~~or amalgamation~~ (i) involving the Borrower, the Borrower is the surviving corporation, (ii) involving a Domestic Subsidiary, the surviving or resulting entity shall be a Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or ~~the requirements of Section 6.05(n) are otherwise complied with~~resulting entity shall be a Wholly Owned Subsidiary; (i) ~~leases, licenses~~ licensing and cross-licensing arrangements involving any technology or ~~subleases~~ other intellectual property of the Borrower or ~~sublicenses of~~ any ~~real or personal property~~ Subsidiary in the ordinary course of business; (j) ~~Dispositions~~ sales, transfers, abandonment, dedication to the public, or other dispositions of ~~inventory~~ United States Patent Nos. 6,480,304, 6,496,206, 6,009,442 and 6,262,732 or ~~Dispositions~~ of intellectual property that is determined by the management of the Borrower to be no longer useful or ~~abandonment~~ necessary to the operation of ~~Intellectual Property~~ the business of the Borrower and ~~its~~ the Subsidiaries; and (k) sales, leases or other dispositions of inventory of the Borrower and the Subsidiaries determined ~~in good faith~~ by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower ~~or any of~~ and the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in this Section 6.05 above, (i) no ~~Disposition~~ sale, transfer or other disposition of assets ~~under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to~~ in ~~clause (b)(y)~~ excess of ~~Section 6.03, under Section 6.05(d),~~ $2.5 million shall be permitted by this Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless ~~(i)~~ such ~~Disposition~~ disposition is ~~for fair market value (as determined in good faith by the Borrower), or if not~~ for fair market value, ~~the shortfall is permitted as an Investment under Section 6.04, and~~ (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) (other than a Permitted Asset Swap) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of ~~the proceeds~~ assets (other than a Permitted Asset Swap) in excess of ~~such Disposition~~ $2.5 million shall be permitted by paragraph (~~except to Loan Parties~~g) ~~consist of cash or Permitted Investments; provided, that the provisions~~ of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis Section 6.05 unless such disposition is for ~~the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement~~at least 75% cash consideration; ~~provided, further,~~ provided that for purposes of ~~this clause~~ clauses (ii) and (iii), ~~each of the following shall be deemed to be cash: (a)~~ the amount of any ~~liabilities~~ secured Indebtedness or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Borrower~~’s or such Subsidiary~~’s most recent balance sheet or in the notes thereto) or any Subsidiary of the Borrower that ~~are~~ is assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (shall be deemed to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value)be cash.

Appears in 1 contract

Samples: Credit Agreement (Nuance Communications, Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, liquidate, wind up or ~~Dispose~~ dissolve itself (or suffer any liquidation or dissolution), or change its jurisdiction of organization to a jurisdiction outside of the United States, or convey, sell, lease or sublease (as lessor or sublessor), exchange, transfer or otherwise dispose of (in one transaction or in a series of ~~related~~ transactions) all or any part of its assets or property of any kind whatsoever (whether now owned or hereafter acquired), or ~~Dispose~~ issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of ~~related~~ transactions) all or any substantial part of the assets or stock of any other person or ~~division~~ any division, unit or ~~line of~~ business of a any person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and ~~Disposition of inventory, or the~~ sale of ~~receivables pursuant to non~~raw materials and inventory (including, without limitation, work-~~recourse factoring arrangements, in each case~~ in-process and finished goods inventory) in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any ~~Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower)~~Subsidiary, (iii) the ~~Disposition~~ sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary, or (iv) ~~assignments by~~ the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition sale of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary ~~with~~ into (or ~~into~~ with) the Borrower in a transaction in which the Borrower is the survivor, (ii) the ~~merger~~ merger, consolidation or amalgamation or consolidation of any Subsidiary into or with ~~or into~~ any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any ~~consideration (unless otherwise permitted by Section 6.04)~~consideration, (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party into or with ~~or into~~ any other Subsidiary that is not a Subsidiary Loan Party, (iv) the ~~liquidation~~ liquidation, winding up or dissolution or change in form of entity of any Subsidiary (other than a Loan Party) if the Borrower determines in good faith that such liquidation, winding up, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to any Agent or the Lenders, or (v) any Subsidiary may ~~merge~~ merge, consolidate or ~~consolidate~~ amalgamate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a ~~Subsidiary (unless otherwise permitted by Section 6.04)~~Subsidiary, which shall be a Loan Party if the ~~merging~~ merging, consolidating or ~~consolidating~~ amalgamating Subsidiary was a Loan Party and which together with each of its ~~Subsidiaries~~ subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.10; (c) ~~Dispositions~~ sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); ~~provided,~~ provided that any ~~Dispositions~~ sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section ~~6.04~~6.07, and shall not in the aggregate exceed, in any fiscal year of the Borrower, $10.0 million; provided that (i) with respect to any sale, transfer, lease or other disposition made under this clause (c), no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) immediately after giving effect to any sale, transfer, lease or other disposition made under this clause (c), the aggregate Revolving Facility Credit Exposure shall not exceed the Line Cap; (d) Sale and ~~Lease-~~Lease Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and ~~Restricted Payments~~ dividends permitted by Section ~~6.06~~ 6.06, Capital Expenditures and ~~(ii) any Disposition made pursuant to~~ the ~~Merger Agreement~~transactions listed on Schedule 3.07(d); (f) ~~Dispositions~~ the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) sales, transfers, leases, licenses or other ~~Dispositions~~ dispositions of ~~assets~~assets not otherwise permitted by this Section 6.05; ~~provided~~provided that (i) no Default or Event of Default exists or would result therefrom, ~~that~~ and (ii) with respect to any such sale, transfer, lease, license or other disposition with gross proceeds (including noncash proceeds) in excess of $5.0 million, immediately after giving effect thereto, the ~~Net Proceeds thereof, if any,~~ Payment Conditions are ~~applied in accordance with Section 2.11(b) to the extent required thereby~~satisfied; (h) the Permitted ~~Business Acquisitions (including~~ Restructuring Transactions; provided that any ~~merger~~exchange, ~~consolidation~~ transfer or ~~amalgamation~~ disposal to a person other than a Loan Party in ~~order~~ connection with any Permitted Restructuring Transaction shall be on terms as are reasonably satisfactory to ~~effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving~~ the ~~Borrower, the Borrower is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with~~Administrative Agent; (i) leases, ~~licenses~~ licenses, or subleases or sublicenses of any real or personal property granted in the ordinary course of business, to the extent not otherwise prohibited by this Agreement; (j) ~~Dispositions~~ sales, leases or other dispositions of inventory ~~or Dispositions or abandonment of Intellectual Property~~ of the Borrower and ~~its~~ the Subsidiaries determined ~~in good faith~~ by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange of assets for services and/or other assets ~~used or useful in a Similar Business~~ of comparable or greater value; ~~provided,~~ provided that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value ~~(as determined in good faith by the Borrower)~~ in excess of $~~12,000,000~~10.0 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market ~~value~~ value, and (iii) in the event of a swap with a fair market value ~~(as determined in good faith by the Borrower)~~ in excess of $~~18,000,000~~20.0 million, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Borrower, $150.0 million, (B) no Default or Event of Default exists or would result ~~therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby~~ therefrom and (C) with respect to any such exchange with aggregate gross consideration in excess of ~~assets for services~~$10.0 million, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (nl) ~~if at the time thereof~~ exchanges of assets between CWPC and ~~immediately after giving effect thereto no Event of Default shall have occurred and be continuing~~ one or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations more of the Borrower ~~under this Agreement~~ and any Subsidiary Loan Party through the ~~other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to~~ division of land between respective mill, utility and hydroelectric assets for the ~~Administrative Agent~~owned Real Property located at Wisconsin Rapids, ~~(3) each Guarantor~~Wisconsin; provided that, unless ~~it is the other party to such merger or consolidation, shall have~~ otherwise agreed by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) ~~an officer’s certificate stating~~ the aggregate fair market value of the Real Property or other assets being received by the applicable Loan Party is approximately equal to or greater than the fair market value of the assets being transferred by such Loan Party in such exchange, (y) the exchange of assets by the parties to the transaction is substantially simultaneous, and (z) the assets received by such Loan Party shall not be subject to any contractual obligation that limits the ability of such Loan Party to create, incur, assume or suffer to exist any Lien on such assets to secure the Loan Obligations (such transactions pursuant to this clause (l), collectively, the “Permitted Land Swaps”); (m) Permitted Business Acquisitions (including any merger or consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided that immediately following any such merger or consolidation ~~does not violate this Agreement~~ or ~~any other Loan Document and~~ amalgamation, (yi) ~~if requested by~~ involving the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted forBorrower, the Borrower ~~under this Agreement); and~~is the surviving corporation, (ii) involving a Subsidiary Loan Party, the surviving or resulting entity shall be a Subsidiary Loan Party, and (iii) involving a Subsidiary that is not a Subsidiary Loan Party, the surviving or resulting entity shall be a Wholly-Owned Subsidiary; (on) ~~any Disposition to effect~~ sales or other dispositions of xxxxx, including through the ~~formation~~ sale of Equity Interests of any Subsidiary ~~that is a Delaware Divided LLC~~ owning or ~~Delaware Divided LP and would otherwise not be prohibited hereunder~~operating any such mill; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) ~~such Disposition is for fair market value (as determined in good faith by the Borrower),~~ no Default or ~~if not for fair market value, the shortfall is permitted as an Investment under Section 6.04,~~ Event of Default exists or would result therefrom and (ii) no sale or other disposition shall be permitted by this paragraph (n) unless such sale or other disposition is for at least 75% ~~of the proceeds of such Disposition (except to Loan Parties) consist of~~ cash ~~or Permitted Investments~~consideration; ~~provided,~~ provided that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of ~~its~~ the Subsidiaries in such ~~Disposition~~ sale or other disposition having an aggregate fair market ~~value (as determined in good faith by the Borrower)~~value, taken together with all other Designated Non-Cash Consideration received pursuant to this ~~clause~~ paragraph (cn) or pursuant to the last proviso to the last paragraph of this Section 6.05 that is at that time outstanding, not to exceed $15.0 million at the ~~greater~~ time of ~~$150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to~~ the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be cash; and (o) sales or assignments of (x) accounts receivable arising from sales of goods or services by a Loan Party to a customer and (y) related assets, in connection with which a commercial bank of national standing (acting in its own capacity or as agent on behalf of the customer) offers to purchase such accounts receivable on commercially reasonable terms from time to time in a manner that results in faster effective realization of such accounts receivable; provided that (i) no Default or Event of Default exists or would result therefrom, (ii) neither the Borrower nor any Subsidiary shall have any obligation, contingent or otherwise, in connection with such sale, other than to deliver the accounts receivable and related assets sold in such transaction free and clear of any encumbrance, (iii) such sale is for cash and fair market value, (iv) the number of Account Debtors whose accounts receivable are at any time subject to such sales or assignments shall be limited to three (3), and while such Account Debtors’ accounts receivable are subject to such sales or assignments, no Accounts of such Account Debtors shall constitute Eligible Accounts, (v) accounts receivable subject to such sales or assignments must be capable of being fully segregated from other Accounts (including with respect to accounts receivable reporting, purchase orders, invoicing and payments) and (vi) in the event that all Accounts of an Account Debtor cease to be subject to such sales or assignments, such Accounts may become Eligible Accounts (subject to the terms and conditions applicable to Accounts generally) subject to the consent of the Administrative Agent not to be unreasonably withheld or delayed. Notwithstanding anything to the contrary contained in this Section 6.05, (i) except for any sale, transfer or disposition of all (but not a portion of) the Equity Interests of any Subsidiaries in compliance with the provisions of Section 6.05 or a transaction permitted by Section 6.05(b), (c) or (n), no sale, transfer or other disposition of any Equity Interests of any Subsidiary shall be permitted by this Section 6.05, (ii) no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases, licenses or other dispositions to Loan Parties or from Subsidiaries that are not Loan Parties to other Subsidiaries that are not Loan Parties pursuant to paragraph (c) hereof and sales, transfers or other dispositions pursuant to paragraph (n) hereof) unless such disposition is for fair market value, and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (f) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $2.5 million (provided that such transactions do not involve assets with a fair market value of more than $15.0 million in the aggregate for all such transactions during the term of this Agreement); provided, further, that for purposes of clause (iii), any Designated Non-Cash Consideration received by the Borrower or any of the Subsidiaries in such sale, transfer or other disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause proviso or pursuant to paragraph (n) above that is at that time outstanding, not to exceed $15.0 million at the time of the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) shall be deemed to be cash. To the extent that any Collateral is disposed of in a transaction expressly permitted by this Section 6.05 to any person other than Holdings, the Borrower or any Subsidiary Loan Party, such Collateral (but not the proceeds thereof) shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent shall take, and shall be authorized by each Lender to take, any actions reasonably requested by the Borrower in order to evidence the foregoing.

Appears in 1 contract

Samples: Asset Based Revolving Credit Agreement (Verso Corp)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge ~~into~~ into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or ~~Dispose~~ sell, transfer, lease or otherwise dispose of (in one transaction or in a series of ~~related~~ transactions) all or any part of its assets (whether now owned or hereafter acquired), or ~~Dispose~~ issue, sell, transfer or otherwise dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of ~~related~~ transactions) all or any substantial part of the assets of any other ~~person or division or line of business of a~~ person, except that this Section ~~6.05~~ shall not prohibit: (a) (i) the purchase and ~~Disposition~~ sale of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the ~~Disposition~~ sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any ~~Subsidiary,~~ Subsidiary or (iv) ~~assignments by~~ the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein sale or ~~(v) the Disposition~~ disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary into or with ~~or into~~ the Borrower in a transaction in which the Borrower is the survivor, (ii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary into or with ~~or into~~ any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is ~~or becomes~~ a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any ~~consideration (unless otherwise permitted by Section 6.04)~~consideration, (iii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary that is not a Subsidiary Loan Party into or with ~~or into~~ any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the ~~Lenders,~~ Lenders or (v) any Subsidiary may ~~merge~~ merge, consolidate or ~~consolidate~~ amalgamate into or with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a ~~Subsidiary (unless otherwise permitted by Section 6.04)~~Subsidiary, which shall be a Loan Party if the ~~merging~~ merging, consolidating or ~~consolidating~~ amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.10; (c) ~~Dispositions~~ sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any ~~Dispositions~~ sales, transfers, leases or other dispositions by the Borrower or a Subsidiary Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this ~~clause~~ paragraph (c) shall not in the aggregate exceed, (x) in any fiscal year of the Borrower, $500 million and (y) $1,000,000,000 unless, with respect to clause (y) above, no Default or Event of Default exists or would result therefrom and immediately after giving effect to such sales, transfers, leases or other dispositions, the Senior Secured Leverage Ratio on a Pro Forma Basis shall not be ~~made in compliance with Section 6.04~~greater than 4.5 to 1.0; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) ~~Dispositions~~ the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) sales, transfers, leases, licenses or other ~~Dispositions~~ dispositions of ~~assets~~assets not otherwise permitted by this Section 6.05; provided, that (i) no Default or Event of Default exists or would result therefrom, (ii) with respect to any such sale, transfer, lease or other disposition with aggregate gross proceeds (including noncash proceeds) in excess of $250 million, immediately after giving effect thereto, the Senior Secured Leverage Ratio on a Pro Forma Basis shall not be greater than 4.5 to 1.0, and (iii) the Net Proceeds ~~thereof, if any,~~ thereof are applied in accordance with Section 2.11(b~~) to the extent required thereby~~); (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~corporation; (i) leases, ~~licenses~~ licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) ~~Dispositions~~ sales, leases or other dispositions of inventory ~~or Dispositions or abandonment of Intellectual Property~~ of the Borrower and its Subsidiaries determined ~~in good faith~~ by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of ~~clause~~ paragraph (a) of the definition of “Net Proceeds”; (l) the purchase and ~~Disposition~~ sale or other transfer (including by capital contribution) of ~~Securitization~~ Receivables Assets ~~including~~ pursuant to Permitted ~~Securitization~~ Receivables Financings; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b); (m) any exchange of assets for services and/or other assets ~~used or useful in a Similar Business~~ of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~50 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~18,000,000~~100 million, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) with respect to any such exchange with aggregate gross consideration in excess of $500 million, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance, and (C) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b~~) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance~~); (n) ~~if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom,~~ any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws disposition of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory Real Estate Assets to the ~~Administrative Agent, (3) each Guarantor, unless it is~~ Real Estate Subsidiaries on the ~~other party to such merger or consolidation, shall have by a supplement to~~ Closing Date and dispositions in connection with the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); andPost-Closing CMBS Transaction; (o) any ~~Disposition~~ disposition made pursuant to ~~effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder~~an Operations Management Agreement; ~~provided that~~ and (p) any disposition of Equity Interests of a Subsidiary pursuant to an agreement or other ~~allocation of any~~ obligation with or to a person (other than the Borrower and its Subsidiaries) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (~~including any equity interests~~ having been newly formed in connection with such acquisition), made as part of such ~~Delaware Divided LLC~~ acquisition and in each case comprising all or ~~Delaware Divided LP)~~ a portion of the consideration in ~~connection therewith is otherwise permitted hereunder~~respect of such sale or acquisition. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no ~~Disposition~~ sale, transfer or other disposition of assets ~~under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d),~~ shall be permitted by this Section 6.05 (other than sales, transfers, leases, licenses or other dispositions to Loan Parties) unless ~~(i)~~ such ~~Disposition~~ disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section ~~6.04,~~ 6.04 and (ii) no sale, transfer or other disposition of assets in excess of $25 million shall be permitted by paragraph (a), (d) or (g) of this Section 6.05 unless such disposition is for at least 75% ~~of the proceeds of such Disposition (except to Loan Parties) consist of~~ cash ~~or Permitted Investments~~consideration; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of ~~this~~ clause (ii), ~~each of the following shall be deemed to be cash:~~ (a) the amount of any liabilities (as shown on the Borrower’s or ~~such~~ any Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or any Subsidiary of the Borrower (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such ~~assets or are otherwise cancelled in connection with such transaction~~assets, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary of the Borrower from ~~the~~ such transferee that are converted by the Borrower or such Subsidiary of the Borrower into cash within 180 days ~~after~~ of the receipt thereof (to the extent of the cash received~~) and~~ ), (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such ~~Disposition~~ Asset Sale having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this ~~clause~~ paragraph (c) that is at that time outstanding, not to exceed ~~the greater of~~ $~~150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration~~ 500 million (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) and (d) with respect to any lease of assets by the Borrower or a Subsidiary that constitutes a disposition, receipt of lease payments over time on market terms (as determined in good faith by the Borrower) where the payment consideration is at least 75% cash consideration shall, in each case, be deemed to be cash. To the extent any Collateral is sold or disposed of in a transaction expressly permitted by this Section 6.05 to any person other than the Borrower or any Subsidiary Loan Party, such Collateral shall be sold or disposed of free and clear of the Liens created by the Loan Documents (provided that, for the avoidance of doubt, with respect to any disposal consisting of an operating lease or license, the underlying property retained by the Borrower or such Subsidiary Loan Party will not be so released), and the Administrative Agent shall take, and is hereby authorized by each Lender to take, any actions reasonably requested by the Borrower in order to evidence the foregoing.

Appears in 1 contract

Samples: Credit Agreement (Harrahs Entertainment Inc)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, liquidate, wind up or ~~Dispose~~ dissolve itself (or suffer any liquidation or dissolution), or change its jurisdiction of organization to a jurisdiction outside of the United States, or convey, sell, lease or sublease (as lessor or sublessor), exchange, transfer or otherwise dispose of (in one transaction or in a series of ~~related~~ transactions) all or any part of its assets or property of any kind whatsoever (whether now owned or hereafter acquired), or ~~Dispose~~ issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of ~~related~~ transactions) all or any substantial part of the assets or stock of any other person or ~~division~~ any division, unit or ~~line of~~ business of any person, or consummate a ~~person~~Division/Series Transaction, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and ~~Disposition of inventory, or the~~ sale of ~~receivables pursuant to non~~raw materials and inventory (including, without limitation, work-~~recourse factoring arrangements, in each case~~ in-process and finished goods inventory) in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any ~~Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower)~~Subsidiary, (iii) the ~~Disposition~~ sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary, or (iv) ~~assignments by~~ the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition sale of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary ~~with~~ (including, a Subsidiary Loan Party) into (or ~~into~~ with) the Borrower in a transaction in which the Borrower is the survivor, (ii) the ~~merger~~ merger, consolidation or amalgamation or consolidation of any Subsidiary into or with ~~or into~~ any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any ~~consideration (unless otherwise permitted by Section 6.04)~~consideration, (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party into or with ~~or into~~ any other Subsidiary that is not a Subsidiary Loan Party, (iv) the ~~liquidation~~ liquidation, winding up or dissolution or change in form of entity of any Subsidiary (other than a Loan Party) if the Borrower determines in good faith that such liquidation, winding up, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to any Agent or the ~~Lenders,~~ Lenders or (v) any Subsidiary may ~~merge~~ merge, consolidate or ~~consolidate~~ amalgamate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a ~~Subsidiary (unless otherwise permitted by Section 6.04)~~Subsidiary, which shall be a Loan Party if the ~~merging~~ merging, consolidating or ~~consolidating~~ amalgamating Subsidiary was a Loan Party and which together with each of its ~~Subsidiaries~~ subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.10; (c) ~~Dispositions~~ sales, transfers, leases or other dispositions to the Borrower or a any Subsidiary (upon voluntary liquidation or otherwise); ~~provided,~~ provided that any ~~Dispositions~~ sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section ~~6.04~~6.07, and shall not in the aggregate exceed, in any fiscal year of the Borrower, $10.0 million; provided that (i) with respect to any sale, transfer, lease or other disposition made under this clause (c), no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) immediately after giving effect to any sale, transfer, lease or other disposition made under this clause (c), the aggregate Revolving Facility Credit Exposure shall not exceed the Line Cap; (d) Sale and ~~Lease-~~Lease Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted ~~Liens and Restricted Payments~~ Liens, dividends permitted by Section 6.06 and ~~(ii) any Disposition made pursuant to the Merger Agreement~~Capital Expenditures; (f) ~~Dispositions~~ the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) sales, transfers, leases, licenses or other ~~Dispositions~~ dispositions of ~~assets~~assets not otherwise permitted by this Section 6.05; ~~provided~~provided that (i) no Default or Event of Default exists or would result therefrom, ~~that~~ and (ii) with respect to any such sale, transfer, lease, license or other disposition with gross proceeds (including noncash proceeds) in excess of $5.0 million, immediately after giving effect thereto, the ~~Net Proceeds thereof, if any,~~ Payment Conditions are ~~applied in accordance with Section 2.11(b) to the extent required thereby~~satisfied; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with[Reserved]; (i) leases, ~~licenses~~ licenses, or subleases or sublicenses of any real or personal property granted in the ordinary course of business, to the extent not otherwise prohibited by this Agreement; (j) ~~Dispositions~~ sales, leases or other dispositions of inventory ~~or Dispositions or abandonment of Intellectual Property~~ of the Borrower and ~~its~~ the other Subsidiaries of Holdings determined ~~in good faith~~ by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower ~~or any~~ and the other Subsidiaries of ~~the Subsidiaries~~Holdings; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange of assets for services and/or other assets ~~used or useful in a Similar Business~~ of comparable or greater value; ~~provided,~~ provided that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value ~~(as determined in good faith by the Borrower)~~ in excess of $~~12,000,000~~10.0 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market ~~value~~ value, and (iii) in the event of a swap with a fair market value ~~(as determined in good faith by the Borrower)~~ in excess of $~~18,000,000~~20.0 million, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Borrower, $150.0 million, (B) no Default or Event of Default exists or would result ~~therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby~~ therefrom and (C) with respect to any such exchange with aggregate gross consideration in excess of ~~assets for services~~$10.0 million, immediately after giving effect thereto, the Borrower and the other Subsidiaries of Holdings shall be in Pro Forma Compliance; (nl) ~~if at the time thereof~~ exchanges of assets between CWPC and ~~immediately after giving effect thereto no Event of Default shall have occurred and be continuing~~ one or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations more of the Borrower ~~under this Agreement~~ and any Subsidiary Loan Party through the ~~other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to~~ division of land between respective mill, utility and hydroelectric assets for the ~~Administrative Agent~~owned Real Property located at Wisconsin Rapids, ~~(3) each Guarantor~~Wisconsin; provided that, unless ~~it is the other party to such merger or consolidation, shall have~~ otherwise agreed by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) ~~an officer’s certificate stating~~ the aggregate fair market value of the Real Property or other assets being received by the applicable Loan Party is approximately equal to or greater than the fair market value of the assets being transferred by such Loan Party in such exchange, (y) the exchange of assets by the parties to the transaction is substantially simultaneous, and (z) the assets received by such Loan Party shall not be subject to any contractual obligation that limits the ability of such Loan Party to create, incur, assume or suffer to exist any Lien on such assets to secure the Loan Obligations (such transactions pursuant to this clause (l), collectively, the “Permitted Land Swaps”); (m) Permitted Business Acquisitions (including any merger or consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided that immediately following any such merger or consolidation ~~does not violate this Agreement~~ or ~~any other Loan Document and~~ amalgamation, (yi) ~~if requested by~~ involving the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted forBorrower, the Borrower ~~under this Agreement); and~~is the surviving corporation, (ii) involving a Subsidiary Loan Party, the surviving or resulting entity shall be a Subsidiary Loan Party, and (iii) involving a Subsidiary that is not a Subsidiary Loan Party, the surviving or resulting entity shall be a Wholly-Owned Subsidiary; (on) ~~any Disposition to effect~~ sales or other dispositions of xxxxx or other operational facilities, including through the ~~formation~~ sale of Equity Interests of any Subsidiary ~~that is a Delaware Divided LLC~~ owning or ~~Delaware Divided LP and would otherwise not be prohibited hereunder~~operating any such mill or other operational facility; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) ~~such Disposition is for fair market value (as determined in good faith by the Borrower),~~ no Default or ~~if not for fair market value, the shortfall is permitted as an Investment under Section 6.04,~~ Event of Default exists or would result therefrom and (ii) no sale or other disposition shall be permitted by this paragraph (n) unless such sale or other disposition is for at least 75% ~~of the proceeds of such Disposition (except to Loan Parties) consist of~~ cash ~~or Permitted Investments~~consideration; ~~provided,~~ provided that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of ~~its~~ the Subsidiaries in such ~~Disposition~~ sale or other disposition having an aggregate fair market ~~value (as determined in good faith by the Borrower)~~value, taken together with all other Designated Non-Cash Consideration received pursuant to this ~~clause~~ paragraph (cn) or pursuant to the last proviso to the last paragraph of this Section 6.05 that is at that time outstanding, not to exceed $15.0 million at the ~~greater~~ time of ~~$150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to~~ the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be cash; and (o) sales or assignments of (x) accounts receivable arising from sales of goods or services by a Loan Party to a customer and (y) related assets, in connection with which a commercial bank of national standing (acting in its own capacity or as agent on behalf of the customer) offers to purchase such accounts receivable on commercially reasonable terms from time to time in a manner that results in faster effective realization of such accounts receivable; provided that (i) no Default or Event of Default exists or would result therefrom, (ii) neither the Borrower nor any Subsidiary shall have any obligation, contingent or otherwise, in connection with such sale, other than to deliver the accounts receivable and related assets sold in such transaction free and clear of any encumbrance, (iii) such sale is for cash and fair market value, (iv) the number of Account Debtors whose accounts receivable are at any time subject to such sales or assignments shall be limited to three (3), and while such Account Debtors’ accounts receivable are subject to such sales or assignments, no Accounts of such Account Debtors shall constitute Eligible Accounts, (v) accounts receivable subject to such sales or assignments must be capable of being fully segregated from other Accounts (including with respect to accounts receivable reporting, purchase orders, invoicing and payments) and (vi) in the event that all Accounts of an Account Debtor cease to be subject to such sales or assignments, such Accounts may become Eligible Accounts (subject to the terms and conditions applicable to Accounts generally) subject to the consent of the Administrative Agent not to be unreasonably withheld or delayed. Notwithstanding anything to the contrary contained in this Section 6.05, (i) except for any sale, transfer or disposition of all (but not a portion of) the Equity Interests of any Subsidiary in compliance with the provisions of Section 6.05 or a transaction permitted by Section 6.05(b), (c) or (n), no sale, transfer or other disposition of any Equity Interests of any Subsidiary shall be permitted by this Section 6.05, (ii) no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases, licenses or other dispositions to Loan Parties or from Subsidiaries that are not Loan Parties to other Subsidiaries that are not Loan Parties pursuant to paragraph (c) hereof and sales, transfers or other dispositions pursuant to paragraph (n) hereof) unless such disposition is for fair market value, and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (f) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $2.5 million (provided that such transactions do not involve assets with a fair market value of more than $15.0 million in the aggregate for all such transactions during the term of this Agreement); provided, further, that for purposes of clause (iii), any Designated Non-Cash Consideration received by the Borrower or any Subsidiary in such sale, transfer or other disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause proviso or pursuant to paragraph (n) above that is at that time outstanding, not to exceed $15.0 million at the time of the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) shall be deemed to be cash. To the extent that any Collateral is disposed of in a transaction expressly permitted by this Section 6.05 to any person other than Holdings, the Borrower or any Subsidiary Loan Party, such Collateral (but not the proceeds thereof) shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent shall take, and shall be authorized by each Lender to take, any actions reasonably requested by the Borrower in order to evidence the foregoing.

Appears in 1 contract

Samples: Credit Agreement (Verso Corp)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the Table of Contents ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary, (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the ~~Target~~ Company of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section ~~6.04~~6.07; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) (i) Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section 6.06 and (ii) any Disposition made pursuant to the Merger Agreement; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business;; Table of Contents (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange of assets for services and/or other assets ~~used or useful in a Similar Business~~ of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~10,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~18,000,000~~15,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance;. (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).;

Appears in 1 contract

Samples: First Lien Credit Agreement (Hospitality Distribution Inc)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge ~~into~~ into, amalgamate with or consolidate with any other ~~person~~Person, or permit any other ~~person~~ Person to merge ~~into~~ into, amalgamate with or consolidate with it, or ~~Dispose~~ sell, transfer, lease or otherwise dispose of (in one transaction or in a series of ~~related~~ transactions) all or any part of its assets (whether now owned or hereafter acquired), or ~~Dispose~~ issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or any Relevant Subsidiary or preferred equity interests of the Borrower or any Relevant Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of ~~related~~ transactions) all or any substantial part of the assets of any other ~~person or division or line of business of a person~~Person, except that this Section ~~6.05~~ shall not prohibit: (a) (i) the purchase and ~~Disposition~~ sale of inventory, or supplies, materials and equipment and the purchase and sale of ~~receivables pursuant to non-recourse factoring arrangements~~rights or licenses or leases of intellectual property, in each case in the ordinary course of business by the Borrower or any ~~Subsidiary~~of its Relevant Subsidiaries, (ii) the ~~acquisition or lease (pursuant to an operating lease)~~ sale of any other asset in the ordinary course of business by the Borrower or any ~~Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower)~~of its Relevant Subsidiaries, (iii) the ~~Disposition~~ sale of surplus, ~~obsolete, damaged~~ obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any ~~Subsidiary,~~ of its Relevant Subsidiaries or (iv) ~~assignments by~~ the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition sale of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be ~~continuing or would result therefrom~~continuing, (i) the merger or consolidation of any Relevant Subsidiary ~~with or~~ of the Borrower into the Borrower in a transaction in which the Borrower is the ~~survivor~~surviving corporation, (ii) the merger or consolidation of any Relevant Subsidiary of the Borrower into or with ~~or into~~ any ~~Subsidiary~~ Loan Party in a transaction in which the surviving or resulting entity is ~~or becomes~~ a ~~Subsidiary~~ Loan Party and, in the case of each of clauses (i) and (ii), no ~~person~~ Person other than the Borrower or a ~~Subsidiary~~ Loan Party receives any ~~consideration (unless otherwise permitted by Section 6.04)~~consideration, (iii) the ~~merger~~ merger, amalgamation or consolidation of any Subsidiary of the Borrower that is not a ~~Subsidiary~~ Loan Party into or with ~~or into~~ any other Subsidiary of the Borrower that is not a ~~Subsidiary~~ Loan Party, (iv) the ~~liquidation~~ liquidation, winding up, or dissolution or change in form of entity of any Relevant Subsidiary of the Borrower if the Borrower determines in good faith that such liquidation, winding up, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the ~~Lenders,~~ Lenders or (v) ~~any Subsidiary may merge or consolidate with any other person~~ the change in ~~order to effect an Investment permitted pursuant to Section 6.04 so long as~~ form of entity of the ~~continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party~~ Borrower if the ~~merging or consolidating Subsidiary was a Loan Party~~ Borrower determines in good faith that such change in form is in the best interests of the Borrower and ~~which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order~~ is not materially disadvantageous to ~~effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~the Lenders; (c) ~~Dispositions~~ sales, transfers, leases or other dispositions to the Borrower or a Subsidiary of the Borrower (upon voluntary liquidation or otherwise); ~~provided,~~ provided that any ~~Dispositions~~ sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary of the Borrower that is not a Loan Party shall be made in compliance with Section 6.07; provided further that the aggregate gross proceeds of any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a ~~Subsidiary~~ Loan Party in reliance on upon this ~~clause~~ paragraph (c) and the aggregate gross proceeds of any or all assets sold, transferred or leased in reliance upon paragraph (g) below shall ~~be made~~ not exceed, in ~~compliance with Section 6.04~~any fiscal year of the Borrower, 5.0% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, ~~Permitted~~ Liens ~~and Restricted Payments~~ permitted by Section ~~6.06~~ 6.02 and ~~(ii) any Disposition made pursuant to the Merger Agreement~~Dividends permitted by Section 6.06; (f) ~~Dispositions~~ the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) sales, transfers, leases or other ~~Dispositions~~ dispositions of ~~assets~~assets not otherwise permitted by this Section 6.05; ~~provided~~provided that the aggregate gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in reliance upon this paragraph (g) and in reliance upon the second proviso to paragraph (c) above shall not exceed, in any fiscal year of the Borrower, 5% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; provided further that the Net Proceeds ~~thereof, if any,~~ thereof are applied in accordance with Section ~~2.11(b) to the extent required thereby~~2.11(c); and provided further that after giving effect thereto, no Default or Event of Default shall have occurred; (h) ~~Permitted Business Acquisitions (including~~ any ~~merger,~~ merger or consolidation ~~or amalgamation~~ in ~~order to effect~~ connection with a Permitted Business Acquisition~~); provided~~, provided that following any such ~~merger,~~ merger or consolidation ~~or amalgamation~~ (i) involving the Borrower, the Borrower is the surviving corporation and (ii) involving a Relevant Subsidiary, the surviving or resulting entity ~~or the requirements of Section 6.05(n) are otherwise complied with~~shall be a Loan Party; (i) ~~leases, licenses~~ licensing and cross-licensing arrangements involving any technology or ~~subleases~~ other intellectual property of the Borrower or ~~sublicenses of~~ any ~~real or personal property~~ Relevant Subsidiary in the ordinary course of business;; and (j) ~~Dispositions~~ abandonment, cancellation or disposition of ~~inventory or Dispositions or abandonment of Intellectual Property~~ any intellectual property of the Borrower ~~and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary~~ in the ~~operation~~ ordinary course of ~~the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant~~ business. Notwithstanding anything to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange of assets for services and/or other assets used or useful contrary contained in ~~a Similar Business of comparable or greater value; provided~~Section 6.05 above, ~~that~~ (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower ~~with respect to such fair market value and (iii) in the event of a swap with a fair market value (~~may, so long as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, ~~any Subsidiary~~ sell, grant or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws otherwise issue Equity Interests to members of ~~the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations~~ management of the Borrower ~~under this Agreement and~~ or any of the ~~other~~ Subsidiaries of the Borrower that are Loan ~~Documents~~ Parties pursuant to ~~a supplement hereto~~ stock option, stock ownership, stock incentive or ~~thereto in form reasonably satisfactory to the Administrative Agent~~similar plans, (3ii) ~~each Guarantor~~no sale, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition transfer or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition disposition of assets ~~under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d),~~ shall be permitted by this Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless ~~(i)~~ such ~~Disposition~~ disposition is ~~for fair market value (as determined in good faith by the Borrower), or if not~~ for fair market value, ~~the shortfall~~ (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a), (d), or (j) of this Section 6.05 unless such disposition is ~~permitted as an Investment under Section 6.04, and (ii)~~ for at least 75% cash consideration and (iv) no sale, transfer or other disposition of ~~the proceeds~~ assets in excess of ~~such Disposition~~ U.S.$10.0 million shall be permitted by paragraph (~~except to Loan Parties~~g) ~~consist of cash or Permitted Investments; provided, that the provisions~~ of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis Section 6.05 unless such disposition is for ~~the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement~~at least 75% cash consideration; ~~provided, further,~~ provided that for purposes of ~~this clause~~ clauses (iiiii) and (iv), ~~each of the following shall be deemed to be cash: (a)~~ the amount of any ~~liabilities~~ secured Indebtedness or other Indebtedness of a Subsidiary of the Borrower that is not a Loan Party (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that ~~are~~ is assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (shall be deemed to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value)be cash.

Appears in 1 contract

Samples: Credit Agreement (Crestwood Midstream Partners LP)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (~~a) (~~i) the purchase and Disposition of inventory~~, or the sale of receivables pursuant to non-recourse factoring arrangements~~, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) Permitted Non-Recourse Factoring Transactions, (iii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (~~iii~~iv) the Disposition of surplus, obsolete, damaged or worn out ~~equipment or~~ equipment, (v) the Disposition of other property in the ordinary course of business by the Borrower or any ~~Subsidiary, (iv) assignments~~ Subsidiary or determined in good faith by the Borrower ~~and~~ to be no longer useful or necessary in the operation of the business of the Borrower or any ~~Subsidiary in connection with insurance arrangements of their rights and remedies under~~Subsidiary, ~~and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein~~ or (vvi) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Primary Borrower in a transaction in which the Primary Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Primary Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Primary Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Primary Borrower and is not materially disadvantageous to the Lenders, so long as all assets of such Subsidiary upon dissolution thereof are transferred to any Borrower or any Subsidiary Loan Party, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party (unless otherwise permitted by Section 6.04) and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04; (d) ~~Sale and Lease-Back Transactions permitted by Section 6.03~~[reserved]; (e~~) (i~~) Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of ~~assets~~assets in an aggregate amount not to exceed over the term of this Agreement the greater of $30,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted Business Acquisitions permitted under Section 6.04(k) (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Primary Borrower, the Primary Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~entity; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in ~~good faith~~ the reasonable business judgment by the management of the Primary Borrower to be no longer useful or necessary in the operation of the business of ~~the~~ any Borrower or any of the Subsidiaries; (k) ~~acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”~~Sale/Leaseback Transactions permitted under Section 6.03; (l) to the ~~purchase and Disposition (including by capital contribution)~~ extent constituting a Disposition, any termination, settlement or extinguishment of ~~Securitization Assets including pursuant to Permitted Securitization Financings~~obligations in respect of any Hedging Agreement; (m) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~5,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Primary Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~18,000,000~~10,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of ~~Holdings or~~ the Primary Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required ~~thereby and~~ thereby, (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Primary Borrower shall ~~be in~~ have a Net Secured Leverage Ratio of 3.75 times or less, and (D) the aggregate amount of exchanges of assets pursuant to this clause (m) shall not exceed the greater of $15,000,000 and 0.05 times the EBITDA calculated on a Pro Forma ~~Compliance~~Basis for the then most recently ended Test Period; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary ~~or any other person~~ may be merged, amalgamated or consolidated with or into the Primary Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) ~~any Disposition to effect~~ Dispositions of DVD and Blu-ray movies and video games and other goods held for rental or sale in the ~~formation~~ ordinary course of ~~any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP~~ operation of the business of the Borrower and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunderthe Subsidiaries. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) ~~or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d),~~ shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $~~20,000,000~~ 2,500,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $~~250,000,000~~ 10,000,000 and ~~0.10~~ 0.033 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 5,000,000 and ~~0.05~~ 0.0165 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be cash.

Appears in 1 contract

Samples: Credit Agreement (Chicken Soup for the Soul Entertainment, Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or ~~Dispose~~ sell, transfer, lease or otherwise dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or ~~Dispose~~ issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or any Subsidiary (other than by the Borrower to Holdco, by the Borrower (of Equity Interests of a Subsidiary) or a Subsidiary to the Borrower or any Subsidiary Loan Party or by any Foreign Subsidiary to another Foreign Subsidiary), or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all or substantially all of the assets of any other ~~person~~ person, or a division or line of business of a any other person, except that this Section ~~6.05~~ shall not prohibit: (a) (i) the purchase and ~~Disposition of inventory, or the~~ sale of ~~receivables pursuant to non-recourse factoring arrangements, in each case~~ inventory in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease ~~(pursuant to an operating lease)~~ of any other asset in the ordinary course of business by the Borrower or any ~~Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower)~~Subsidiary, (iii) the ~~Disposition~~ sale of surplus, ~~obsolete, damaged~~ obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary, (iv) ~~assignments~~ the leasing or subleasing of real property in the ordinary course of business by the Borrower ~~and~~ or any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the ~~Disposition~~ sale of or other disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be ~~continuing or would result therefrom~~continuing, (i) the merger ~~or consolidation~~ of any Subsidiary ~~with or~~ into the Borrower in a transaction in which the Borrower is the ~~survivor~~surviving or resulting entity, (ii) the merger or consolidation of any Subsidiary into or with ~~or into~~ any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is ~~or becomes~~ a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration ~~(unless~~ pursuant thereto except to the extent otherwise permitted by ~~Section 6.04)~~this Agreement, (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party into or with ~~or into~~ any other Subsidiary that is not a Subsidiary Loan ~~Party,~~ Party or (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than the Borrower) if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the ~~Lenders, (v)~~ Lenders and no person other than the Borrower or any Subsidiary ~~may merge or consolidate with~~ receives any ~~other person in order~~ consideration pursuant thereto except to ~~effect an Investment permitted pursuant to Section 6.04 so long as~~ the ~~continuing or surviving person shall be a Subsidiary (unless~~ extent otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this ~~Section 6.05~~Agreement; (c) ~~Dispositions~~ sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); ~~provided,~~ provided that any ~~Dispositions~~ sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party ~~in reliance on this clause (c)~~ shall be made in compliance with Section 6.07 and Section 6.04; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, ~~Permitted~~ Liens ~~and Restricted Payments~~ permitted by Section ~~6.06~~ 6.02, and ~~(ii) any Disposition made pursuant to the Merger Agreement~~dividends, distributions, redemptions and repurchases permitted by Section 6.06; (f) ~~Dispositions~~ the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) sales, transfers, leases or other ~~Dispositions~~ dispositions of ~~assets~~assets by the Borrower or any Subsidiary and issuances, sales, transfers or other dispositions of any Equity Interests of the Borrower or any Subsidiary not otherwise permitted by this Section 6.05; provided that the aggregate gross proceeds (including non-cash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in reliance upon this paragraph (g) shall not exceed $10.0 million during any fiscal year; provided, further, that the Net Proceeds ~~thereof, if any,~~ thereof are applied in accordance with Section 2.11(b~~) to the extent required thereby~~); (h) sales, transfers, leases or other dispositions by the Borrower or any Subsidiary of assets that were acquired in connection with an acquisition permitted hereunder (including, without limitation, Permitted Business ~~Acquisitions~~ Acquisitions); provided that any such sale, transfer, lease or other disposition shall be made or contractually committed to be made within 270 days of the date such assets were acquired by the Borrower or such Subsidiary; and provided further that, on a Pro Forma Basis for such disposition and the consummation of such Permitted Business Acquisition, the Borrower and its subsidiaries are in compliance with the Financial Performance Covenants; (~~including~~ i) any ~~merger,~~ merger or consolidation ~~or amalgamation~~ in ~~order to effect~~ connection with a Permitted Business Acquisition~~); provided~~, provided that following any such ~~merger, consolidation~~ merger or ~~amalgamation~~ consolidation (i) involving the Borrower, the Borrower is the surviving or resulting entity, (ii) involving a Subsidiary Loan Party, the surviving or resulting entity shall be a Subsidiary Loan Party and (iii) involving a Foreign Subsidiary, the surviving or ~~the requirements of Section 6.05(n) are otherwise complied with~~resulting entity shall be a Wholly Owned Subsidiary; (ij) ~~leases, licenses~~ licensing and cross-licensing arrangements involving any technology or ~~subleases~~ other intellectual property of the Borrower or ~~sublicenses of~~ any ~~real or personal property~~ Subsidiary in the ordinary course of business; (jk) ~~Dispositions~~ sales, leases or other dispositions of inventory ~~or Dispositions or abandonment of Intellectual Property~~ of the Borrower and its Subsidiaries determined ~~in good faith~~ by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (~~k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (~~l) ~~the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to~~ Permitted ~~Securitization Financings~~Asset Swaps; (m) ~~any exchange of assets for services and/or~~ contributions, assignments or other ~~assets used or useful in a Similar Business of comparable or greater value; provided, that (i) at least 90%~~ transfers of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer right of the Borrower ~~with respect~~ or any Subsidiary to receive advertising fees from franchisees, or of such ~~fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,000~~advertising fees or proceeds thereof, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the ~~extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance~~Marketing Fund Trusts; (n) ~~if at the time thereof~~ Permitted Business Acquisitions and ~~immediately after giving effect thereto no Event~~ acquisitions of ~~Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A~~area directors and/or master franchisees pursuant to Section 6.04(s) ~~the Borrower shall be the surviving entity~~ or (Bt); (o) if sales, transfers, leases or other dispositions of vendor-supplied equipment as required by the ~~surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1~~vendor contract(s) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to ~~a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to~~ which such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement)equipment was supplied; and (op) ~~any Disposition to effect~~ the ~~formation~~ issuance of ~~any Subsidiary that is a Delaware Divided LLC~~ Junior Capital by Holdco or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunderthe Borrower. Notwithstanding anything to the contrary contained in this Section ~~6.05 above~~6.05, (i) no ~~Disposition~~ sale, transfer or other disposition of assets ~~under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to~~ in ~~clause (b)(y)~~ excess of ~~Section 6.03, under Section 6.05(d),~~ $2.5 million shall be permitted ~~unless~~ by this Section 6.05 (~~i) such Disposition is for fair market value~~ other than sales, transfers, leases or other dispositions pursuant to clause (~~as determined in good faith by the Borrower~~c), (m) or ~~if not~~ (q)) unless such disposition is for fair market value, ~~the shortfall is permitted as an Investment under Section 6.04, and~~ (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a), (k) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration (other than resales of ~~the proceeds~~ area directorships or master franchisees, which shall be for at least 50% cash consideration) and (iii) no sale, transfer or other disposition of ~~such Disposition~~ assets in excess of $2.5 million shall be permitted by paragraph (~~except to Loan Parties~~g) ~~consist of cash~~ or ~~Permitted Investments; provided, that the provisions~~ (h) of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis Section 6.05 unless such disposition is for ~~the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement~~at least 75% cash consideration; ~~provided, further,~~ provided that for purposes of ~~this clause~~ the 75% cash consideration requirement in the foregoing clauses (ii) and (iii), ~~each of the following shall be deemed to be cash:~~ (ax) the amount of any ~~liabilities~~ Indebtedness of the Borrower or any Subsidiary Loan Party (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that ~~are~~ is assumed by the transferee of any such assets ~~or are otherwise cancelled~~ and (y) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such ~~transaction~~sale, ~~(b) any notes~~ transfer or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (disposition shall be deemed to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value)be cash.

Appears in 1 contract

Samples: First Lien Credit Agreement

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section ~~6.05~~ 8.05 shall not prohibit: (a) (i) the purchase and Disposition of ~~inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case~~ inventory in the ordinary course of business by the ~~Borrower~~ Issuer or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the ~~Borrower~~ Issuer or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the ~~Borrower~~Issuer), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the ~~Borrower~~ Issuer or any Subsidiary, (iv) ~~assignments by~~ the ~~Borrower~~ Disposition of tools, equipment and ~~any Subsidiary~~ similar property in ~~connection with insurance arrangements~~ exchange for, or the proceeds of ~~their rights and remedies under~~the Disposition of which will be applied towards the purchase price of, ~~and with respect to~~new or replacement tools, ~~the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein~~ equipment or similar property or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the ~~merger~~ merger, amalgamation or consolidation of any Subsidiary with or into the ~~Borrower~~ Issuer in a transaction in which the ~~Borrower~~ Issuer is the survivor, (ii) the ~~merger~~ merger, amalgamation or consolidation of any Subsidiary with or into any Subsidiary ~~Loan Party~~ Guarantor in a transaction in which the surviving or resulting entity is or becomes a Subsidiary ~~Loan Party~~ Guarantor and, in the case of each of clauses (i) and (ii), no person other than the ~~Borrower~~ Issuer or a Subsidiary ~~Loan Party~~ Guarantor receives any consideration (unless otherwise permitted by Section ~~6.04~~8.04), (iii) the ~~merger~~ merger, amalgamation or consolidation of any Subsidiary that is not a Subsidiary ~~Loan Party~~ Guarantor with or into any other Subsidiary that is not a Subsidiary ~~Loan Party~~Guarantor, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the ~~Borrower~~ Issuer determines in good faith that such liquidation, dissolution or change in form is in the best interests of the ~~Borrower~~ Issuer and is not materially disadvantageous to the ~~Lenders~~Noteholder Parties, (v) any Subsidiary may ~~merge~~ merge, amalgamate or consolidate with any other person (other than the Issuer) in order to effect an Investment permitted pursuant to Section ~~6.04~~ 8.04 so long as the continuing or surviving person shall be a Subsidiary Guarantor (unless otherwise permitted by Section ~~6.04~~8.04), which shall be a ~~Loan~~ Note Party if the merging or consolidating Subsidiary was a ~~Loan~~ Note Party (unless otherwise permitted by Section 8.04) and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section ~~5.10~~ 7.10 or (vi) any Subsidiary may ~~merge~~ merge, amalgamate or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section ~~6.05~~8.05; (c) Dispositions (i) to the ~~Borrower~~ Issuer or a Subsidiary Guarantor (upon voluntary liquidation or otherwise)~~; provided~~, ~~that~~ (ii) by the Issuer or any ~~Dispositions by a Loan Party~~ Subsidiary Guarantor to a any Subsidiary that is not a Note Party (other than of any Material IP) for fair market value as determined in good faith by the Issuer acting in its reasonable discretion or (iii) by any Subsidiary ~~Loan~~ that is not a Note Party ~~in reliance on this clause (c) shall be made in compliance with Section 6.04~~to the Issuer or any Subsidiary; (d) so long as no Event of Default exists or would result therefrom, Sale and Lease-Back Transactions permitted by Section ~~6.03~~8.03; provided that if such Sale and Lease-Back Transaction results in a Capitalized Lease Obligation, such Capitalized Lease Obligation is permitted by Section 8.01 and any Lien made the subject of such Capitalized Lease Obligation is permitted by Section 8.02; (e) ~~(i)~~ Investments permitted by Section ~~6.04~~8.04 (including any merger, ~~Permitted Liens~~ amalgamation or consolidation in order to effect such Investments) and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~8.06; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of ~~assets~~assets to a person that is not an Affiliate of any Note Party; provided, that (i) at the time of the execution of the definitive documentation for such Disposition, no Event of Default shall exist or would result from such Disposition, (ii) the requirements of the fourth to last paragraph of this Section 8.05 shall apply to such Disposition and (iii) the Net Proceeds thereof, if any, are applied in accordance with Section ~~2.11(b) to the extent required thereby~~3.02(b); (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with[Reserved]; (i) ~~leases, licenses~~ leases or subleases or licenses or sublicenses of any real or personal property (including licenses of Intellectual Property) in the ordinary course of ~~business~~business and consistent with past practice or industry practices; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the ~~Borrower~~ Issuer and its Subsidiaries determined in good faith by the management of the ~~Borrower~~ Issuer to be no longer useful or necessary in the operation of the business of the ~~Borrower~~ Issuer or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange of assets other Dispositions for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the ~~Borrower~~Issuer (acting in its reasonable discretion) with an aggregate value not in excess of $~~12,000,000~~10,000,000 per fiscal year; (l) [Reserved]; (m) Dispositions contractually committed as of, or contemplated as of, the ~~Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value~~ Closing Date and set forth on Schedule 8.05; (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(bn) to the extent ~~required thereby and (C) with respect to~~ constituting an Asset Sale, any ~~exchange~~ termination, settlement or extinguishment of ~~assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance;~~Hedging Agreements or other contractual obligations; and (no) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the ~~Borrower~~Issuer, provided that (A) the ~~Borrower~~ Issuer shall be the surviving entity or (B) if the surviving entity is not the ~~Borrower~~ Issuer (such other person, the “Successor ~~Borrower~~Issuer”), (1) the Successor ~~Borrower~~ Issuer shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor ~~Borrower~~ Issuer shall expressly assume all the obligations of the ~~Borrower~~ Issuer under this ~~Agreement~~ Indenture and the other ~~Loan~~ Note Documents pursuant to a supplement and/or amendment hereto or thereto in form reasonably satisfactory to the ~~Administrative Agent~~Trustee (acting at the direction of the Required Noteholder Parties), (3) each Subsidiary Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the ~~Holdings Guarantee and Pledge Agreement or the~~ Subsidiary Guarantee ~~Agreement, as applicable,~~ Agreement confirmed that its guarantee thereunder shall apply to any Successor ~~Borrower~~Issuer’s obligations under this ~~Agreement~~Indenture, (4) each Subsidiary ~~Loan Party~~Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor ~~Borrower~~ Issuer shall have delivered to the ~~Administrative Agent (x)~~ Trustee an ~~officer~~Officer’s ~~certificate~~ Certificate stating that such merger or consolidation does not violate this ~~Agreement~~ Indenture or any other ~~Loan~~ Note Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor ~~Borrower~~ Issuer will succeed to, and be substituted for, the ~~Borrower~~ Issuer under this ~~Agreement~~Indenture); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section ~~6.05~~ 8.05 above, (I) no Disposition of assets under Section ~~6.05(g~~8.05(g) ~~or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03,~~ or under Section ~~6.05(d),~~ 8.05(d) shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the ~~Borrower~~Issuer acting in its reasonable discretion) and (ii)(x) with respect to any Disposition of any Core Asset (other than pursuant to Section 8.05(a)), ~~or if not for fair market value,~~ at least 90% of the ~~shortfall is permitted as an Investment under Section 6.04,~~ proceeds of such Disposition consists of cash and (iiy) with respect to any Disposition of any Non-Core Asset, at least 75% of the proceeds of such Disposition ~~(except to Loan Parties)~~ consist of cash ~~or Permitted Investments; provided~~and (II) neither the Issuer nor any Subsidiary shall be permitted to Dispose of any Material IP to any person that is not a Note Party, ~~that~~ except for non-exclusive licenses. Upon request by the ~~provisions~~ Issuer, the Trustee (acting at the direction of ~~this clause (ii~~the Required Noteholder Parties) shall ~~not apply~~ direct the Collateral Agent on behalf of the Noteholder Parties to provide the tenant under any lease or sublease permitted hereunder with a subordination, non-disturbance and attornment agreement in such form as is reasonably satisfactory to the Trustee (acting at the direction of the Required Noteholder Parties). To the extent any Collateral is sold, contributed, distributed, transferred or disposed of in a transaction expressly permitted by this Section 8.05 to any ~~individual transaction~~ person other than a Note Party, such Collateral shall be sold, contributed, distributed, transferred or ~~series~~ disposed of ~~related transactions involving assets with a fair market value (as determined in good faith~~ free and clear of the Liens created by the ~~Borrower) of less than $20,000,000 or~~ Note Documents, and the Trustee and the Collateral Agent shall take, and is hereby authorized by each Noteholder Party to ~~other transactions involving assets with a fair market value (as determined in good faith~~ take, any actions reasonably requested by the ~~Borrower~~Issuer in order to evidence the foregoing. For purposes of determining compliance with this covenant, a Disposition need not be permitted solely by reference to one category of permitted Dispositions (or portion thereof) ~~of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period~~ described in the ~~aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall~~ above clauses but may be ~~deemed to be cash: (a) the amount of~~ permitted in part under any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value)combination thereof.

Appears in 1 contract

Samples: Indenture (Wolfspeed, Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge ~~into~~ into, amalgamate with or consolidate with any other ~~person~~Person (including by division), or permit any other ~~person~~ Person to merge ~~into~~ into, amalgamate with or consolidate with itit (including by division), or ~~Dispose~~ sell, transfer, lease or otherwise dispose of (in one transaction or in a series of ~~related~~ transactions) all or any part of its assets (whether now owned or hereafter acquired), or ~~Dispose of any Equity Interests of any Subsidiary, or~~ purchase, lease or otherwise acquire (in one transaction or a series of ~~related~~ transactions) all or any substantial part of the assets of any other ~~person or division or line of business of a person~~Person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and ~~Disposition~~ sale of inventory, or supplies, materials and equipment and the purchase and sale of ~~receivables pursuant to non-recourse factoring arrangements~~rights or licenses or leases of intellectual property, in each case in the ordinary course of business by the Borrower or any ~~Subsidiary~~of its Relevant Subsidiaries, (ii) the ~~acquisition or lease (pursuant to an operating lease)~~ sale of any other asset in the ordinary course of business by the Borrower or any ~~Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower)~~of its Relevant Subsidiaries, (iii) the ~~Disposition~~ sale of surplus, ~~obsolete, damaged~~ obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any ~~Subsidiary~~of its Relevant Subsidiaries, including motor vehicles, (iv) ~~assignments by~~ the ~~Borrower and any Subsidiary~~ sale of Permitted Investments in ~~connection with insurance arrangements~~ the ordinary course of ~~their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein~~ business or (v) the ~~Disposition~~ purchase of ~~Permitted Investments~~ direct ownership interests (excluding, for the avoidance of doubt, Equity Interests) in Midstream Assets, equipment and other Property in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be ~~continuing or would result therefrom~~continuing, (i) the merger or consolidation of any Relevant Subsidiary ~~with or~~ of the Borrower into the Borrower in a transaction in which the Borrower is the ~~survivor~~surviving corporation, (ii) the merger or consolidation of any Relevant Subsidiary of the Borrower into or with ~~or into~~ any ~~Subsidiary~~ Loan Party in a transaction in which the surviving or resulting entity is ~~or becomes~~ a ~~Subsidiary~~ Loan Party and, in the case of each of ~~clauses~~ clause (i) and clause (ii), no ~~person~~ Person other than the Borrower or a ~~Subsidiary~~ Loan Party receives any ~~consideration (unless otherwise permitted by Section 6.04)~~consideration, (iii) the ~~merger~~ merger, amalgamation or consolidation of any Subsidiary of the Borrower that is not a ~~Subsidiary~~ Loan Party into or with ~~or into~~ any other Subsidiary of the Borrower that is not a ~~Subsidiary~~ Loan Party, (iv) the ~~liquidation~~ liquidation, winding up, or dissolution or change in form of entity of any Relevant Subsidiary of the Borrower if the Borrower determines in good faith that such liquidation, winding up, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the ~~Lenders~~Lenders and if such Relevant Subsidiary is a Domestic Subsidiary, its assets are transferred to Borrower or another Loan Party, (v) ~~any Subsidiary~~ the change in form of entity of the Borrower if the Borrower determines in good faith that such change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders so long as the Borrower is in compliance with Section 5.10(e) or (vi) the Borrower may merge or consolidate with ~~any other person in order~~ Parent Company to ~~effect an Investment permitted~~ the extent that the Parent Company (A) survives such merger or consolidation, (B) expressly assumes the obligations of the Borrower under the Loan Documents pursuant to ~~Section 6.04 so long as~~ documentation reasonably satisfactory to the ~~continuing~~ Administrative Agent and (C) satisfies the Holding Company Condition immediately prior to such merger or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05consolidation; (c) ~~Dispositions~~ sales, transfers, leases or other dispositions to the Borrower or a Subsidiary of the Borrower (upon voluntary liquidation or otherwise); ~~provided,~~ provided that any ~~Dispositions~~ sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary of the Borrower that is not a Loan Party shall be made in compliance with Section 6.07; provided further that the aggregate gross proceeds of any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a ~~Subsidiary~~ Loan Party in reliance on upon this ~~clause (c~~Section 6.05(c) shall ~~be made in compliance with Section 6.04~~not exceed at any time the greater of $25.0 million and 2.5% of Consolidated Net Tangible Assets; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, ~~Permitted~~ Liens ~~and Restricted Payments~~ permitted by Section ~~6.06~~ 6.02 and ~~(ii) any Disposition made pursuant to the Merger Agreement~~dividends, distributions, redemptions, purchases, retirements or other acquisitions for value permitted by Section 6.06; (f) ~~Dispositions~~ the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) sales, transfers, leases or other ~~Dispositions~~ dispositions of ~~assets~~assets not otherwise permitted by this Section 6.05; ~~provided,~~ provided that the aggregate gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in reliance upon this Section 6.05(g) and in reliance upon the second proviso in Section 6.05(c) shall not exceed the greater of $25.0 million and 2.5% of Consolidated Net ~~Proceeds thereof, if any, are applied in accordance with Section 2.11(b)~~ Tangible Assets as of the end of the fiscal quarter immediately prior to the ~~extent required thereby~~date of such sale, transfer, lease or other disposal for which financial statements have been delivered pursuant to Section 5.04; provided further that after giving effect thereto, no Default or Event of Default shall have occurred and be continuing; (h) ~~Permitted Business Acquisitions (including~~ any ~~merger,~~ merger or consolidation ~~or amalgamation~~ in ~~order to effect~~ connection with a Permitted Business Acquisition~~); provided~~, provided that following any such ~~merger,~~ merger or consolidation ~~or amalgamation~~ (i) involving the Borrower, the Borrower is the surviving corporation and (ii) involving a Relevant Subsidiary, the surviving or resulting entity ~~or the requirements of Section 6.05(n) are otherwise complied with~~shall be a Loan Party; (i) ~~leases, licenses~~ licensing and cross-licensing arrangements involving any technology or ~~subleases~~ other intellectual property of the Borrower or ~~sublicenses of~~ any ~~real or personal property~~ Relevant Subsidiary in the ordinary course of business; (j) ~~Dispositions~~ abandonment, cancellation or disposition of ~~inventory or Dispositions or abandonment of Intellectual Property~~ any intellectual property of the Borrower ~~and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary~~ in the ~~operation~~ ordinary course of ~~the business of the Borrower or any of the Subsidiaries~~business; (k) ~~acquisitions and purchases made with the proceeds~~ any issuance or sale of ~~any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”~~Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary; (l) sales, transfers, leases or other dispositions of assets or Investments in joint ventures to the ~~purchase and Disposition (including by capital contribution) of Securitization Assets including~~ extent required by, or made pursuant to ~~Permitted Securitization Financings;~~customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements; and (m) sales, transfers, leases or other dispositions of Midstream Assets or any ~~exchange~~ interest therein not otherwise permitted by this Section 6.05 made in the ordinary course of business; provided that the aggregate gross proceeds (including noncash proceeds) of any or all assets ~~for services and/or other assets used~~ sold, transferred, leased or ~~useful~~ otherwise disposed of in ~~a Similar Business~~ reliance upon this Section 6.05(m) shall not exceed at any time the greater of ~~comparable or greater value; provided, that (i) at least 90~~$50.0 million and 5.0% of ~~the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (~~Consolidated Net Tangible Assets as ~~determined in good faith by the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer~~ of the ~~Borrower with respect~~ end of the fiscal quarter immediately prior to the date of such ~~fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,000~~sale, ~~such exchange shall~~ transfer, lease or other disposal for which financial statements have been ~~approved by at least a majority of the Board of Directors of Holdings or the Borrower~~delivered pursuant to Section 5.04; ~~provided, further,~~ provided further that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, ~~the Borrower shall be in Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto~~ no Default or Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereundercontinuing. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no ~~Disposition~~ sale, transfer or other disposition of assets ~~under~~ shall be permitted by this Section ~~6.05(g~~6.05 (other than sales, transfers, leases or other dispositions pursuant to Section 6.05(a)(iii), Section 6.05(b), Section 6.05(c) ~~or,~~ (solely with respect to ~~Sale and Lease-Back Transactions referred~~ dispositions to ~~in clause (b)(y)~~ the Borrower or a Subsidiary of ~~Section 6.03, under Section 6.05(d~~the Borrower), ~~shall be permitted~~ Section 6.05(e), Section 6.05(f), Section 6.05(h), Section 6.05(i), Section 6.05(j) or Section 6.05(l) hereof) unless ~~(i)~~ such ~~Disposition~~ disposition is for fair market value ~~(as determined in good faith~~ and, if reasonably requested by the ~~Borrower), or if not for fair market value~~Administrative Agent, the ~~shortfall is permitted as an Investment under Section 6.04,~~ Borrower shall deliver a certificate of a Responsible Officer certifying to that effect and (ii) no sale, transfer or other disposition of assets shall be permitted by Section 6.05(g) unless such disposition is for at least 75% ~~of the proceeds of such Disposition (except to Loan Parties) consist of~~ cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value)consideration.

Appears in 1 contract

Samples: Credit Agreement (Aris Water Solutions, Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (~~a) (~~i) the purchase and Disposition of inventory~~, or the sale of receivables pursuant to non-recourse factoring arrangements~~, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) Permitted Non-Recourse Factoring Transactions, (iii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (~~iii~~iv) the Disposition of surplus, obsolete, damaged or worn out ~~equipment or~~ equipment, (v) the Disposition of other property in the ordinary course of business by the Borrower or any ~~Subsidiary, (iv) assignments~~ Subsidiary or determined in good faith by the Borrower ~~and~~ to be no longer useful or necessary in the operation of the business of the Borrower or any ~~Subsidiary in connection with insurance arrangements of their rights and remedies under~~Subsidiary, ~~and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein~~ or (vvi) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Primary Borrower in a transaction in which the Primary Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Primary Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Primary Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Primary Borrower and is not materially disadvantageous to the Lenders, so long as all assets of such Subsidiary upon dissolution thereof are transferred to any Borrower or any Subsidiary Loan Party, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party (unless otherwise permitted by Section 6.04) and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04; (d) ~~Sale and Lease-Back Transactions permitted by Section 6.03~~[reserved]; (e~~) (i~~) Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of ~~assets~~assets in an aggregate amount not to exceed over the term of this Agreement the greater of $30,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; ~~provided~~provided that (i) such Disposition is for 100% cash consideration, ~~that~~ (ii) the Net Proceeds ~~thereof, if any,~~ thereof are applied in accordance with Section 2.11(b) and (iii) the foregoing cap shall not apply from and after the Forbearance Termination Date in connection with the Disposition of non-core assets and/or one or more Company Sale Transactions approved by the Strategic Review Committee and the Chief Restructuring Officer so long as the Net Proceeds thereof are applied to prepay the ~~extent required thereby~~Term Loans in accordance with Section 2.11(b) (without giving effect to any thresholds or reinvestment rights); (h) Permitted Business Acquisitions permitted under Section 6.04(k) (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Primary Borrower, the Primary Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~entity; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in ~~good faith~~ the reasonable business judgment by the management of the Primary Borrower to be no longer useful or necessary in the operation of the business of ~~the~~ any Borrower or any of the Subsidiaries; (k) ~~acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”~~Sale/Leaseback Transactions permitted under Section 6.03; (l) to the ~~purchase and Disposition (including by capital contribution)~~ extent constituting a Disposition, any termination, settlement or extinguishment of ~~Securitization Assets including pursuant to Permitted Securitization Financings~~obligations in respect of any Hedging Agreement; (m) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~5,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Primary Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~18,000,000~~10,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of ~~Holdings or~~ the Primary Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b~~) to the extent required thereby and~~ ), (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Primary Borrower shall ~~be in~~ have a Net Secured Leverage Ratio of 3.75 times or less, and (D) the aggregate amount of exchanges of assets pursuant to this clause (m) shall not exceed the greater of $15,000,000 and 0.05 times the EBITDA calculated on a Pro Forma ~~Compliance~~Basis for the then most recently ended Test Period; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary ~~or any other person~~ may be merged, amalgamated or consolidated with or into the Primary Borrower~~, provided that~~ ; (Ao) Dispositions of DVD and Blu-ray movies and video games and other goods held for rental or sale in the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws ordinary course of operation of the ~~United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations~~ business of the Borrower ~~under this Agreement~~ and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement)Subsidiaries; and (op) ~~any Disposition~~ the sub-licensing of the SMV Library Assets by the SMV Sub-Licensor Entities pursuant to ~~effect~~ the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise Owlpoint Facility permitted ~~hereunder~~under Section 6.01(j). Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) ~~or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d),~~ shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $~~20,000,000~~ 2,500,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $~~250,000,000~~ 10,000,000 and ~~0.10~~ 0.033 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 5,000,000 and ~~0.05~~ 0.0165 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be cash. Notwithstanding anything in the foregoing to the contrary, no Loan Party shall Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired) or Dispose of any Equity Interests of any Subsidiary after the First Amendment Effective Date except, for the avoidance of doubt, as provided in clause (p) above, without the prior written consent of the Administrative Agent (in its sole discretion); provided that, in all cases, the Net Proceeds thereof are applied in accordance with Section 2.11(b).

Appears in 1 contract

Samples: Credit Agreement (Chicken Soup for the Soul Entertainment, Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge ~~into~~ into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or ~~Dispose~~ sell, transfer, lease, license or otherwise dispose of (in one transaction or in a series of ~~related~~ transactions) all or any part of its assets (whether now owned or hereafter acquired), or ~~Dispose~~ issue, sell, transfer or otherwise dispose of any Equity Interests of in any Subsidiary, or purchase, ~~lease~~ lease, license or otherwise acquire (in one transaction or a series of ~~related~~ transactions) all or substantially all of the assets of any other ~~person or division or line of business of a~~ person, except that this Section ~~6.05~~ shall not prohibit: (a) (i) the purchase and ~~Disposition~~ sale of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to ~~operating~~ leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the ~~Disposition~~ sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any ~~Subsidiary,~~ Subsidiary or (iv) ~~assignments by~~ the ~~Borrower~~ sale or disposition of cash and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of the Borrower or any Subsidiary into or with ~~or into~~ the Borrower in a transaction in which the Borrower is the survivor, (ii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary into or with ~~or into~~ any ~~Subsidiary~~ Loan Party in a transaction in which the surviving or resulting entity is ~~or becomes~~ a ~~Subsidiary~~ Loan Party and, in the case of each of clauses (i) and (ii), no person other than ~~the Borrower or~~ a ~~Subsidiary~~ Loan Party receives any ~~consideration (unless otherwise permitted by Section 6.04)~~consideration, (iii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary that is not a ~~Subsidiary~~ Loan Party into or with ~~or into~~ any other Subsidiary that is not a ~~Subsidiary~~ Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower or its Subsidiaries and is not materially disadvantageous to the ~~Lenders,~~ Lenders or (v) any Subsidiary may ~~merge~~ merge, consolidate or ~~consolidate~~ amalgamate into or with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a ~~Subsidiary (unless otherwise permitted by Section 6.04)~~Subsidiary, which shall be a Loan Party if the ~~merging~~ merging, consolidating or ~~consolidating~~ amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.10; (c) ~~Dispositions~~ sales, transfers, leases, licenses or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise)~~; provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04~~; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section ~~6.04~~6.04 (including any merger, consolidation or amalgamation in order to effect an Investment), Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) ~~Dispositions~~ the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) sales, transfers, leases, licenses or other ~~Dispositions~~ dispositions of ~~assets~~assets not otherwise permitted by this Section 6.05 (other than Material Games or Material Assets); provided, that (i) no Event of Default exists or would result therefrom, in each case, determined at the date the definitive agreements for such sale, transfer, lease, license or other disposition of assets are entered into, (ii) the Net Proceeds ~~thereof, if any,~~ thereof are applied in accordance with Section 2.11(b), (iii) such sale, transfer, lease, license or other disposition of assets shall be for fair market value (as determined in good faith by the Borrower) or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04 and (iv) no such sale, transfer, lease, license or other disposition of assets in excess of the greater of $25.0 million and 0.03 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period shall be permitted unless such disposition is for at least 75% cash and cash equivalent consideration; provided, that for purposes of this subclause (g)(iv), each of the following shall be deemed to be cash: (A) the amount of any liabilities (as shown on the Borrower’s or any Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or any Subsidiary (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (B) any notes or other obligations or other securities or assets received by the Borrower or any Subsidiary from such transferee that are converted by the Borrower or such Subsidiary into cash within 180 days of the receipt thereof (to the extent ~~required thereby~~of the cash received), (C) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this subclause (g)(iv)(C) that is at that time outstanding, not to exceed the greater of $100.0 million and 0.115 times the EBITDA calculated on a Pro Forma basis for the then most recently ended Test Period (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) and (D) with respect to any lease of assets by the Borrower or a Subsidiary that constitutes a disposition, receipt of lease payments over time on market terms (as determined in good faith by the Borrower) where the payment consideration is at least 75% cash consideration; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~entity; (i) leases, ~~licenses~~ licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) ~~Dispositions~~ (i) sales, leases or other dispositions of ~~inventory or Dispositions or abandonment~~ inventory, (ii) non-exclusive licenses and sublicenses of ~~Intellectual Property~~ intellectual property in the ordinary course of business not interfering in any material respect with the business of the Borrower and the Subsidiaries, taken as a whole or (iii) sales, licenses, sublicenses, or other dispositions, or abandonment of intellectual property of the Borrower or any of its Subsidiaries in the ordinary course of business or if reasonably determined ~~in good faith~~ by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of its Subsidiaries, and, in each case, not interfering in any material respect with the business of the Borrower and the Subsidiaries, taken as a whole; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of ~~clause~~ paragraph (a) of the definition of “Net Proceeds”; (l) the purchase and ~~Disposition~~ sale, conveyance, transfer or other disposition (including by capital contribution) of ~~Securitization~~ Receivables Assets ~~including~~ pursuant to Permitted ~~Securitization~~ Receivables Financings; (m) ~~any exchange~~ sales, transfers, leases, licenses or other dispositions of ~~assets for services and/or other assets used~~ Material Games or ~~useful in a Similar Business of comparable or greater value~~Material Assets; provided, that (except in the case of non-exclusive licenses in the ordinary course of business not interfering in any material respect with the business of the Borrower and the Subsidiaries) (i) no Event of Default exists or would result therefrom, in each case, determined at ~~least 90% of~~ the ~~consideration received by~~ date the ~~transferor consists~~ definitive agreements for such sale, transfer, lease, license or other disposition of assets ~~that will be used in a business or business activity permitted hereunder~~are entered into, (ii) the Net Proceeds thereof are applied in ~~the event~~ accordance with Section 2.11(b), (iii) such sale, transfer, lease, license or other disposition of ~~a swap with a~~ any Material Game or Material Asset shall be for fair market value (as determined in good faith by the Borrower) ~~in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value~~ and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (Aiv) no ~~Default~~ such sale, transfer, lease, license or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation disposition of any ~~Subsidiary that is a Delaware Divided LLC~~ Material Game or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), Material Asset shall be permitted unless ~~(i)~~ such ~~Disposition~~ disposition is for ~~fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04,~~ 100% cash and ~~(ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of~~ cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).equivalent consideration;

Appears in 1 contract

Samples: Incremental Assumption Agreement and Second Amendment to Credit Agreement (Playtika Holding Corp.)

Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or amalgamate or consolidate with any other person, or permit any other person to merge into or consolidate with it, or ~~Dispose of (in one transaction~~ liquidate or ~~in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired)~~dissolve, or ~~Dispose of any Equity Interests of any Subsidiary~~consummate an Asset Sale, or purchase, lease or otherwise acquire (in one transaction or a series of ~~related~~ transactions) all or substantially all of the assets of any other ~~person or division or line of business of a~~ person, except ~~that this Section 6.05 shall not prohibit: (a)~~ for (i) the ~~purchase and Disposition~~ liquidation or dissolution of ~~inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or~~ any inactive Subsidiary, (ii) ~~the acquisition or lease (pursuant to an operating lease) of any other asset~~ Permitted Acquisitions in ~~the ordinary course of business by the Borrower or any Subsidiary or,~~ accordance with ~~respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower),~~ Section 6.04 and (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary, (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be ~~continuing or would result therefrom~~continuing, (ix) the merger or amalgamation or consolidation of any Subsidiary Guarantor into or with ~~or into the~~ either Borrower in a transaction in which ~~the~~ such Borrower is the ~~survivor~~surviving corporation, (iiy) the merger or amalgamation or consolidation of any Subsidiary Guarantor into or with any other Subsidiary Guarantor, and (z) the merger or amalgamation or consolidation of any Restricted Party into ~~any Subsidiary Loan Party in~~ another Restricted Party, provided that if only one of the Restricted Parties is a ~~transaction in which~~ Transaction Party, it shall be the surviving ~~or resulting entity is or becomes a Subsidiary Loan Party and,~~ corporation. (b) Engage in ~~the case of each of clauses~~ any Asset Sale not otherwise permitted under paragraph (a) above unless (i) such Asset Sale is for consideration at least 75% of which is cash (and no portion of the remaining consideration shall be in the form of Indebtedness of any Restricted Party), (ii~~), no person other than~~ ) such consideration is at least equal to the ~~Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04)~~fair market value of the assets being Disposed of, (iii) the ~~merger~~ fair market value of all assets Disposed of pursuant to this paragraph (b) shall not exceed (x) $10,000,000 in any fiscal year or ~~consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party~~(y) $50,000,000 in the aggregate, and (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) (i) Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section 6.06 and (ii) any Disposition made pursuant to the Merger Agreement; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section 6.05(n2.13(b) are otherwise complied with; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).

Appears in 1 contract

Samples: Credit Agreement (Angiotech Pharmaceuticals Inc)

Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge ~~into~~ into, or consolidate or amalgamate with any other ~~person~~Person, or permit any other ~~person~~ Person to merge into or consolidate with it, or ~~Dispose~~ sell, transfer, lease or otherwise dispose of (in one transaction or in a series of ~~related~~ transactions) all or any part of its assets (whether now owned or hereafter acquired), or ~~Dispose~~ issue, sell, transfer or otherwise dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of ~~related~~ transactions) all or any substantial part of the assets of any other ~~person or division or line of business of a person~~Person, except ~~that~~ that, subject to Section 7.11, this Section ~~6.05~~ 7.5 shall not prohibit~~: (a)~~ : (i) the purchase and ~~Disposition~~ sale of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the ~~Disposition~~ sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any ~~Subsidiary,~~ Subsidiary or (iv) ~~assignments by~~ the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein sale or ~~(v) the Disposition~~ disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary into or with ~~or into~~ the Borrower in a transaction in which the Borrower is the survivor, (ii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary into or with ~~or into~~ any Subsidiary ~~Loan Party~~ Guarantor in a transaction in which the surviving or resulting entity is ~~or becomes~~ a Subsidiary ~~Loan Party~~ Guarantor and, in the case of each of clauses (i) and (ii), no ~~person~~ Person other than the Borrower or a Subsidiary ~~Loan Party~~ Guarantor receives any ~~consideration (unless otherwise permitted by Section 6.04)~~consideration, (iii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary that is not a Subsidiary ~~Loan Party~~ Guarantor into or with ~~or into~~ any other Subsidiary that is not a Subsidiary ~~Loan Party~~Guarantor, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the ~~Lenders~~Lenders (it being understood that in the case of any liquidation or dissolution of a Subsidiary Guarantor, such Subsidiary Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Subsidiary that is a Subsidiary Guarantor will remain a Subsidiary Guarantor (unless such Subsidiary Guarantor is otherwise permitted to cease being a Subsidiary Guarantor hereunder) and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Security Documents), or (v) any Subsidiary may ~~merge~~ merge, consolidate or ~~consolidate~~ amalgamate into or with any other ~~person~~ Person in order to effect an Investment permitted pursuant to Section ~~6.04~~ 7.4 so long as the continuing or surviving ~~person~~ Person shall be a ~~Subsidiary (unless otherwise permitted by Section 6.04)~~Subsidiary, which shall be a Loan Party if the ~~merging~~ merging, consolidating or ~~consolidating~~ amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~7.12; (c) ~~Dispositions~~ sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise~~); provided~~) (other than sales, ~~that any Dispositions~~ transfers, leases or other dispositions by the Borrower or a ~~Loan Party~~ Subsidiary Guarantor to a Subsidiary that is not a Subsidiary ~~Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04~~Guarantor); (d) Sale and Lease-Back Transactions permitted by Section ~~6.03~~7.3; (e) ~~(i)~~ Investments permitted by Section ~~6.04~~7.4, Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~7.6; (f) ~~Dispositions~~ the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) sales, transfers, leases, licenses or other ~~Dispositions~~ dispositions of ~~assets~~assets not otherwise permitted by this Section 7.5 to the extent not constituting (in one transaction or in a series of related transactions) the disposition of all or substantially all of the assets of the Borrower and its Subsidiaries on a consolidated basis; provided, that (i) no Default or Event of Default exists or would result therefrom, (ii) with respect to any such sale, transfer, lease or other disposition with aggregate gross proceeds (including noncash proceeds) in excess of $10,000,000, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance, (iii) the Net Proceeds ~~thereof, if any,~~ thereof are applied in accordance with Section 2.11(b) of the Bank Credit Agreement, (iv) with respect to any sale, transfer or other disposition in excess of $5,000,000, such disposition is for at least 75% cash consideration; provided, that for purposes of this clause (iv), (1) the amount of any liabilities (as shown on the Borrower’s or any Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or any Subsidiary of the Borrower (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets or otherwise cancelled in connection with such transaction, (2) any notes or other obligations or other securities or assets received by the Borrower or a Subsidiary of the Borrower from such transferee that are converted by the Borrower or such Subsidiary of the Borrower into cash within 180 days of the receipt thereof (to the extent ~~required thereby~~of the cash received), (3) any Designated Non-Cash Consideration received by the Borrower or any of the Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (3) that is at that time outstanding, not to exceed $25,000,000 (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) and (4) with respect to any lease of assets by the Borrower or a Subsidiary that constitutes a disposition, receipt of lease payments over time on market terms (as determined in good faith by the Borrower) where the payment consideration is at least 75% cash consideration shall, in each case, be deemed to be cash and (v) prior to the Commencement of Operations of the Development, the aggregate gross proceeds (including noncash proceeds) of dispositions pursuant to this Section 7.5(g) shall not exceed $10,000,000 in any Fiscal Year of the Borrower; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~corporation; (i) leases, ~~licenses~~ licenses, easements, or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) ~~Dispositions~~ sales, leases or other dispositions of inventory ~~or Dispositions or abandonment of Intellectual Property~~ of the Borrower and its Subsidiaries determined ~~in good faith~~ by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or ~~any of the~~ its Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of ~~clause (a) of~~ the definition of “Net Proceeds”; (~~l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m~~1) any exchange of Gaming Equipment and related assets for ~~services and/or other~~ Gaming Equipment and related assets ~~used or useful in a Similar Business~~ of comparable or greater value; provided, that (i) ~~at least 90%~~ in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $10,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the ~~consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder,~~ Borrower with respect to such fair market value and (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,00025,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of ~~Holdings~~ the Borrower or ~~the Borrower~~a Parent Entity; ~~provided, further,~~ provided further that (A) no Default or Event of Default ~~exists~~ shall exist or would result therefrom, (B) ~~the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C)~~ with respect to any such exchange with aggregate consideration in excess of ~~assets for services~~$25,000,000, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1C) to the ~~Successor Borrower shall be an entity organized or existing under the laws~~ extent that such Gaming Equipment constitutes Collateral, such exchange is permitted pursuant to Section 6(b) of the ~~United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this~~ Security Agreement and ~~the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to~~ such ~~merger or consolidation,~~ replacement Gaming Equipment and related assets shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04constitute Collateral, and (iiD) ~~at least 75%~~ the Net Proceeds, if any, thereof (other than any Net Proceeds in respect of Collateral) are applied in accordance with Section 2.11(b) of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Bank Credit Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).;

Appears in 1 contract

Samples: Ff&e Loan Agreement (Caesars Acquisition Co)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), effect any Delaware LLC Division or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any ~~Subsidiary~~Subsidiary or the conversion of accounts receivable to notes receivable, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property by the Borrower or any Subsidiary in the ordinary course of business or determined in good faith by the Borrower to be no longer used or useful or necessary in the operation of the business of the Borrower or any ~~Subsidiary,~~ Subsidiary or (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section ~~6.04~~6.07; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with; (i) leases, assignments, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange of assets for services and/or other assets ~~used or useful in a Similar Business~~ of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~10,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~18,000,000~~15,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance;. (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan ~~Document and~~ Document, (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement) and (z) information and documentation with respect to the Successor Borrower for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT ACT and the Act and Beneficial Ownership Regulation; (o) any purchase or Disposition by the Borrower or any Subsidiary of a store of the Borrower or such Subsidiary not otherwise permitted by this Section 6.05 so long as (i) such store was acquired by the Borrower or such Subsidiary from a franchisee with the intent of reselling such store and the Borrower notifies the Administrative Agent at the time of such acquisition that such property is being acquired in connection with an Excluded Resale and (ii) such sale occurs within 12 months of the acquisition of such store by the Borrower or such Subsidiary (each, an “Excluded Resale”); (p) any Disposition in connection with refranchising activities or Disposing of stores and related assets to franchisees; (q) Dispositions of food, beverages and other goods held for sale or consumed in the ordinary course of operation of the dining and entertainment center business. (r) any termination, non-renewal, expiration, amendment or other modification of franchise agreements or development agreements with franchisees of the Borrower or any Subsidiary; and (os) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC ~~or Delaware Divided LP~~ and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided ~~LLC or Delaware Divided LP~~LLC) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $~~20,000,000~~ 15,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $~~250,000,000~~ 50,000,000 and ~~0.10 times~~ 3% of Consolidated Total Assets as of the ~~EBITDA calculated on a Pro Forma Basis for~~ end of the then most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received~~) and~~ ), (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 75,000,000 and ~~0.05 times~~ 4.0% of Consolidated Total Assets as of the ~~EBITDA calculated on a Pro Forma Basis for~~ end of the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), (d) the amount of Indebtedness of any Subsidiary that is no longer a Subsidiary as a result of such Asset Sale, to the extent that Holdings, the Borrower and each other Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale and (e) consideration consisting of Indebtedness of the Borrower or a Subsidiary (other than Indebtedness that is subordinated in right of payment to the Loan Obligations) received from persons who are not Holdings, the Borrower or a Subsidiary in connection with the Asset Sale and that is cancelled. For purposes of this Agreement, the fair market value of any assets acquired, leased, exchanged, Disposed of, sold, conveyed or transferred by the Borrower or any Subsidiary shall be determined in good faith by the Borrower and may be determined either, at the option of the Borrower, at the time of such acquisition, lease, exchange, Disposition, sale, conveyance or transfer, as applicable, or as of the date of the definitive agreement with respect to such acquisition, lease, exchange, Disposition, sale, conveyance or transfer, as applicable.

Appears in 1 contract

Samples: First Lien Credit Agreement (Cec Entertainment Inc)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), effect any LLC Division, or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, or the Disposition of any Customer Notes, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any ~~Subsidiary,~~ Subsidiary or (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the ~~Lenders,~~ Lenders or (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.10; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section ~~6.04~~6.07; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b~~) to the extent required thereby~~); (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~corporation; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by business judgment of the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of ~~Securitization~~ Receivables Assets including pursuant to Permitted ~~Securitization~~ Receivables Financings;; and (m) any exchange of assets for services and/or other assets ~~used or useful in a Similar Business~~ of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted ~~hereunder,~~ hereunder and (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~5,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrowervalue; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this clause (m) shall not exceed, in any fiscal year of the Borrower, the greater of $20,000,000 and 3% of the Consolidated Total Assets as at the end of the then most recently ended Test Period, (B) no Default or Event of Default exists or would result therefrom, and (BC) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no Disposition of assets under Section 6.05(d) (to the extent required under Section 6.03(b)) or Section 6.05(g) ~~or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d),~~ shall be permitted unless ~~(i)~~ such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) ~~at least 75%~~ no Disposition of assets under Section 6.05(g) or Section 6.05(d) (to the ~~proceeds of~~ extent required under Section 6.03(b)) shall be permitted unless such Disposition (except to Loan Parties) ~~consist of~~ is for at least 75% cash ~~or Permitted Investments~~consideration; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement5,000,000; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 30,000,000 and ~~0.05 times~~ 4.25% of Consolidated Total Assets as at the ~~EBITDA calculated on a Pro Forma Basis for~~ end of the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).

Appears in 1 contract

Samples: Incremental Assumption and Amendment Agreement (PlayAGS, Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the ~~Borrower~~ Borrowers or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the ~~Borrower~~ Borrowers or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the ~~Borrower~~Borrowers), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the ~~Borrower~~ Borrowers or any Subsidiary, (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the ~~Borrower~~ Borrowers in a transaction in which the ~~Borrower is~~ Borrowers are the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the ~~Borrower~~ Borrowers or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the ~~Borrower determines~~ Borrowers determine in good faith that such liquidation, dissolution or change in form is in the best interests of the ~~Borrower~~ Borrowers and is not materially disadvantageous to the ~~Lenders,~~ Lenders or (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of ~~its~~ their Subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.10; (c) Dispositions to the ~~Borrower~~ Borrowers or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made either (i) on terms that are substantially no less favorable to such Loan Party, as applicable, than would be obtained in ~~compliance~~ a comparable arm’s-length transaction with a person that is not an Affiliate, as determined by the Board of Directors of such Loan Party in good faith or (ii) be counted as an Investment to the extent of any shortfall below fair market value and permitted to the extent permitted by Section 6.04; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) ~~other~~ Dispositions of ~~assets~~assets not otherwise permitted by this Section 6.05; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b~~) to the extent required thereby~~); (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving ~~the~~ a Borrower, ~~the~~ such Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~corporation; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the ~~Borrower~~ Borrowers and ~~its~~ their Subsidiaries determined in good faith by the management of the ~~Borrower~~ Borrowers to be no longer useful or necessary in the operation of the business of the ~~Borrower~~ Borrowers or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of ~~Securitization~~ Receivables Assets including pursuant to Permitted ~~Securitization~~ Receivables Financings;; and (m) any exchange of assets for services and/or other assets ~~used or useful in a Similar Business~~ of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the ~~Borrower~~Borrowers) in excess of $~~12,000,000~~10,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the ~~Borrower~~ Borrowers with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the ~~Borrower~~Borrowers) in excess of $~~18,000,000~~15,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the ~~Borrower~~Borrowers; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this clause (m) shall not exceed, in any fiscal year of the Borrowers, the greater of $150,000,000 and 5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), (B) no Default or Event of Default exists or would result therefrom, and (BC) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b~~) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance~~); (n) if sales of assets comprising all or a portion of the Industrial Chain Business or Equity Interests in persons the only assets of which at the time ~~thereof and immediately after giving effect thereto no Event~~ of ~~Default shall have occurred and be continuing~~ such sale comprise all or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws a portion of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement)Industrial Chain Business; and (o) ~~any Disposition to effect~~ the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunderHoneywell Receivables Transaction. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no Disposition of assets under Section 6.05(d) and Section 6.05(g) ~~or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d),~~ shall be permitted unless ~~(i)~~ such Disposition is for fair market value (as determined in good faith by the ~~Borrower~~Borrowers), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) ~~at least 75%~~ no Disposition of ~~the proceeds of~~ assets under Section 6.05(g) shall be permitted unless such Disposition (except to Loan Parties) ~~consist of~~ is for at least 75% cash ~~or Permitted Investments~~consideration; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the ~~Borrower~~Borrowers) of less than $~~20,000,000~~ 10,000,000 or to other transactions involving assets with a fair market value ~~(as determined in good faith by the Borrower)~~ of not more than the greater of $~~250,000,000~~ 75,000,000 and ~~0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period~~ 3% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the ~~Borrower’s~~ Borrowers’ or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the ~~Borrower~~ Borrowers or such Subsidiary from the transferee that are converted by the ~~Borrower~~ Borrowers or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the ~~Borrower~~ Borrowers or any of ~~its~~ their Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the ~~Borrower~~Borrowers), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 100,000,000 and ~~0.05 times~~ 4% of Consolidated Total Assets as of the ~~EBITDA calculated on a Pro Forma Basis for~~ end of the ~~Test Period ended~~ fiscal quarter immediately prior to the receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) (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).

Appears in 1 contract

Samples: Incremental Assumption and Amendment Agreement (Rexnord Corp)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any ~~Subsidiary~~Subsidiary or the conversion of accounts receivable to notes receivable, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property by the Borrower or any Subsidiary in the ordinary course of business or consistent with past practice or determined in good faith by the Borrower to be no longer used or useful or necessary in the operation of the business of the Borrower or any Subsidiary, or (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any ~~Subsidiary~~ Subsidiary, if the Borrower determines in good faith that such liquidation, dissolution or change in form is advisable or in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party (unless otherwise permitted by Section 6.04) and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted ~~Business~~ Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted ~~Business~~ Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section ~~6.05(n~~6.05(o) are otherwise complied with; (i) leases, assignments, licenses or subleases or sublicenses of any real or personal property in the ordinary course of ~~business~~business or consistent with past practice; (j) Dispositions of inventory or sales, transfers, dedication to the public, abandonment or other Dispositions ~~or abandonment~~ of Intellectual Property of the Borrower and its Subsidiaries determined ~~in good faith~~ by the management of the ~~Borrower~~ Borrower, in its reasonable business judgment, to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of (i) Securitization Assets including pursuant to Permitted Securitization ~~Financings~~Financings and (ii) any other Securitization Assets subject to Liens securing Permitted Securitization Financing; (m) to the extent constituting a Disposition, any termination, settlement, extinguishment or unwinding of obligations in respect of any Hedging Agreement; (n) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) to the extent the consideration received consists of assets, at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~5,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~18,000,000~~10,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of ~~Holdings or~~ the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (no) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the ~~Holdings Guarantee and Pledge Agreement or the~~ Subsidiary Guarantee ~~Agreement, as applicable,~~ Agreement confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor ~~Borrower~~ Xxxxxxxx will succeed to, and be substituted for, the Borrower under this Agreement); and (op) ~~any Disposition to effect~~ Dispositions in connection with the ~~formation~~ exercise of any ~~Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition~~ subscriptions, options, warrants, puts, calls or other ~~allocation of any assets (including any equity interests of such Delaware Divided LLC~~ rights or ~~Delaware Divided LP) in connection therewith is otherwise permitted hereunder~~commitments pursuant to agreements set forth on Schedule 3.08(b). Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, (ii) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (iiiii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (iiiii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $~~20,000,000~~ 10,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $~~250,000,000~~ 20,000,000 and ~~0.10~~ 0.20 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (iiiii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received~~) and~~ ), (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 50,000,000 and ~~0.05~~ 0.50 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), (d) the amount of Indebtedness of any Subsidiary that is no longer a Subsidiary as a result of such Asset Sale, to the extent that the Borrower and each other Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale and (e) consideration consisting of Indebtedness of the Borrower or a Subsidiary (other than Indebtedness that is subordinated in right of payment to the Loan Obligations) received from persons who are not the Borrower or a Subsidiary in connection with the Asset Sale and that is cancelled. For purposes of this Agreement, the fair market value of any assets acquired, leased, exchanged, Disposed of, sold, conveyed or transferred by the Borrower or any Subsidiary shall be determined in good faith by the Borrower and may be determined either, at the option of the Borrower, at the time of such acquisition, lease, exchange, Disposition, sale, conveyance or transfer, as applicable, or as of the date of the definitive agreement with respect to such acquisition, lease, exchange, Disposition, sale, conveyance or transfer, as applicable.

Appears in 1 contract

Samples: Credit Agreement (Cerence Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge ~~into~~ into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or ~~Dispose~~ sell, transfer, lease or otherwise dispose of (in one transaction or in a series of ~~related~~ transactions) all or any part of its assets (whether now owned or hereafter acquired), or ~~Dispose~~ issue, sell, transfer or otherwise dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of ~~related~~ transactions) all or substantially all of the assets of any other ~~person or division or line of business of a~~ person, except that this Section ~~6.05~~ shall not prohibit: (a) (i) the purchase and ~~Disposition~~ sale of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by ~~the~~ any Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by ~~the~~ any Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the applicable Borrower), (iii) the ~~Disposition~~ sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by ~~the~~ any Borrower or any ~~Subsidiary,~~ Subsidiary or (iv) ~~assignments by~~ the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein sale or ~~(v) the Disposition~~ disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Borrower or Subsidiary into or with ~~or into the~~ any other Borrower in a transaction in which ~~the~~ a Borrower is the survivor, (ii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Borrower (other than the Company) or Subsidiary into or with ~~or into~~ any ~~Subsidiary~~ Loan Party in a transaction in which the surviving or resulting entity is ~~or becomes~~ a ~~Subsidiary~~ Loan Party and, in the case of each of clauses (i) and (ii), no person other than ~~the Borrower or~~ a ~~Subsidiary~~ Loan Party receives any ~~consideration (unless otherwise permitted by Section 6.04)~~consideration, (iii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary that is not a ~~Subsidiary~~ Loan Party into or with ~~or into~~ any other Subsidiary that is not a ~~Subsidiary~~ Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Borrower (other than the Company) or any Subsidiary if the ~~Borrower~~ Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the ~~Borrower~~ Company or the Subsidiaries and is not materially disadvantageous to the ~~Lenders,~~ Lenders or (v) any Borrower (other than the Company) or Subsidiary may ~~merge~~ merge, consolidate or ~~consolidate~~ amalgamate into or with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a ~~Subsidiary (unless otherwise permitted by Section 6.04)~~Subsidiary, which shall be a Loan Party if the ~~merging~~ merging, consolidating or ~~consolidating~~ amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.10; (c) ~~Dispositions~~ sales, transfers, leases or other dispositions to ~~the~~ a Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any ~~Dispositions~~ sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a ~~Subsidiary~~ Loan Party in reliance on this ~~clause~~ paragraph (c) shall ~~be made~~ not in ~~compliance with Section 6.04~~the aggregate exceed, in any fiscal year of the Borrower, $10.0 million; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) ~~Dispositions~~ the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) sales, transfers, leases, licenses or other ~~Dispositions~~ dispositions of ~~assets~~assets not otherwise permitted by this Section 6.05; provided, that (i) no Default or Event of Default exists or would result therefrom, (ii) with respect to any such sale, transfer, lease or other disposition with aggregate gross proceeds (including noncash proceeds) in excess of $25.0 million, immediately after giving effect thereto, the Borrowers shall be in Pro Forma Compliance, (iii) the Net Proceeds ~~thereof, if any,~~ thereof are applied in accordance with Section 2.11(b), (iv) such sale, transfer or other disposition of assets shall be for fair market value (as determined in good faith by the Company), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04 and (v) no such sale, transfer or other disposition of assets in excess of $25 million shall be permitted unless such disposition is for at least 75% cash consideration; provided, that for purposes of this subclause (g)(v), each of the following shall be deemed to be cash: (A) the amount of any liabilities (as shown on any Borrower’s or any Subsidiary’s most recent balance sheet or in the notes thereto) of any Borrower or any Subsidiary of such Borrower (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (B) any notes or other obligations or other securities or assets received by such Borrower or such Subsidiary of such Borrower from such transferee that are converted by such Borrower or such Subsidiary of such Borrower into cash within 180 days of the receipt thereof (to the extent ~~required thereby;~~of the cash received), (C) any Designated Non-Cash Consideration received by such Borrower or any of its Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the applicable Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this subclause (g)(v)(C) that is at that time outstanding, not to exceed $175.0 million (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) and (D) with respect to any lease of assets by a Borrower or a Subsidiary that constitutes a disposition, receipt of lease payments over time on market terms (as determined in good faith by the applicable Borrower) where the payment consideration is at least 75% cash consideration. (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving ~~the~~ a Borrower, ~~the~~ such Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~corporation; (i) leases, ~~licenses~~ licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) ~~Dispositions~~ sales, leases or other dispositions of inventory or ~~Dispositions~~ sales, licenses, sublicenses or other dispositions or abandonment of ~~Intellectual Property~~ intellectual property of ~~the~~ any Borrower ~~and~~ or any of its Subsidiaries determined ~~in good faith~~ by the management of ~~the~~ such Borrower to be no longer useful or necessary in the operation of the business of ~~the~~ such Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of ~~clause~~ paragraph (a) of the definition of “Net Proceeds”; (l) the purchase and ~~Disposition~~ sale or other transfer (including by capital contribution) of ~~Securitization~~ Receivables Assets ~~including~~ pursuant to Permitted ~~Securitization~~ Receivables Financings; (m) any exchange of assets for services and/or other assets ~~used or useful in a Similar Business~~ of comparable or greater ~~value~~value (other than any such exchanges by a Borrower or Subsidiary with a Person that is an Affiliate of any Borrower or Subsidiary); provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the ~~Borrower~~Company) in excess of $~~12,000,000~~25.0 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the ~~Borrower~~ Company with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the ~~Borrower~~Company) in excess of $~~18,000,000~~35.0 million, such exchange shall have been approved by at least a majority of the Board of Directors of ~~Holdings or~~ the ~~Borrower~~Company; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) with respect to any such exchange with aggregate gross consideration in excess of $5.0 million, immediately after giving effect thereto, the Borrowers shall be in Pro Forma Compliance, and (C) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b~~) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance~~); (n) ~~if at~~ any disposition, merger, consolidation or amalgamation in connection with the ~~time thereof~~ Post-Closing Restructuring Transaction; (o) any disposition made pursuant to an Operations Management Agreement; and (p) (i) the lease, sublease or license of any portion of any project to persons who, either directly or through Affiliates of such persons, intend to operate or manage nightclubs, bars, restaurants, recreation areas, spas, pools, exercise or gym facilities, or entertainment or retail venues or similar or related establishments or facilities within such project and ~~immediately after giving effect thereto~~ (ii) the grant of declarations of covenants, conditions and restrictions and/or easements with respect to common area spaces and similar instruments benefiting such tenants of such leases, subleases and licenses generally and/or entered into connection with a project (collectively, the “Venue Easements,” and together with any such leases, subleases or licenses, collectively the “Venue Documents”); provided that (A) no Event of Default shall ~~have occurred~~ exist and be continuing at the time any such Venue Document is entered into or would occur as a result ~~therefrom~~of entering into such Venue Document, ~~any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or~~ (B) if the ~~surviving entity is not~~ Loan Parties shall be required to maintain control (which may be through required contractual standards) over the ~~Borrower~~ primary aesthetics and standards of service and quality of the business being operated or conducted in connection with any such leased, subleased or licensed space and (C) no Venue Document or operations conducted pursuant thereto would reasonably be expected to materially interfere with, or materially impair or detract from, the operations of the Borrowers and the Subsidiaries; provided further that upon request by the Company, the Collateral Agent on behalf of the Secured Parties shall provide the tenant, subtenant or licensee under any Venue Document with a subordination, non-disturbance and attornment agreement substantially in the form of Exhibit L-1 or Exhibit L-2 hereto, as applicable, or in such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form as is reasonably satisfactory to the ~~Administrative Agent,~~ Collateral Agent and the applicable Loan Party; (3q) ~~each Guarantor, unless it is~~ the dedication of space or other ~~party to such merger~~ dispositions of property in connection with and in furtherance of constructing structures or ~~consolidation, shall have by a supplement~~ improvements reasonably related to the ~~Holdings Guarantee~~ development, construction and ~~Pledge Agreement~~ operation of any project; provided that in each case such dedication or other dispositions are in furtherance of, and do not materially impair or interfere with the operations of the Borrowers and the Subsidiaries; (r) dedications of, or the ~~Subsidiary Guarantee Agreement~~granting of easements, ~~as applicable~~rights of way, ~~confirmed that its guarantee thereunder shall apply~~ rights of access and/or similar rights, to any ~~Successor Borrower’s obligations under this Agreement~~Governmental Authority, ~~(4) each Subsidiary Loan Party~~utility providers, ~~unless it is the~~ cable or other ~~party to such merger~~ communication providers and/or other parties providing services or ~~consolidation, shall have by a supplement~~ benefits to any ~~applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3)~~project, (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any ~~other Loan Document and (y) if requested~~ Real Property held by the ~~Administrative Agent, an opinion~~ Loan Parties or the public at large that would not reasonably be expected to interfere in any material respect with the operations of ~~counsel to~~ the ~~effect that such merger or consolidation does not violate this Agreement or any other Loan Document~~ Borrowers and ~~covering such other matters as are contemplated by~~ the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement)Subsidiaries; and (os) any ~~Disposition~~ disposition of Equity Interests of a Subsidiary pursuant to ~~effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition~~ an agreement or other ~~allocation of any~~ obligation with or to a person (other than the Borrowers and the Subsidiaries) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled having been newly formed in connection with such ~~transaction~~acquisition), ~~(b) any notes~~ made as part of such acquisition and in each case comprising all or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent a portion of the ~~cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries~~ consideration in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt respect of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value)sale or acquisition.; and

Appears in 1 contract

Samples: First Lien Credit Agreement (CAESARS ENTERTAINMENT Corp)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any ~~Subsidiary~~Subsidiary or the conversion of accounts receivable to notes receivable, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property by the Borrower or any Subsidiary in the ordinary course of business or consistent with past practice or determined in good faith by the Borrower to be no longer used or useful or necessary in the operation of the business of the Borrower or any Subsidiary, or (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any ~~Subsidiary~~ Subsidiary, if the Borrower determines in good faith that such liquidation, dissolution or change in form is advisable or in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party (unless otherwise permitted by Section 6.04) and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) (i) Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section 6.06 and (ii) any Disposition made pursuant to the ~~Merger Agreement~~Transaction Documents or in connection with the Transactions; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted ~~Business~~ Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted ~~Business~~ Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section ~~6.05(n~~6.05(o) are otherwise complied with; (i) leases, assignments, licenses or subleases or sublicenses of any real or personal property in the ordinary course of ~~business~~business or consistent with past practice; (j) Dispositions of inventory or sales, transfers, dedication to the public, abandonment or other Dispositions ~~or abandonment~~ of Intellectual Property of the Borrower and its Subsidiaries determined ~~in good faith~~ by the management of the ~~Borrower~~ Borrower, in its reasonable business judgment, to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of (i) Securitization Assets including pursuant to Permitted Securitization ~~Financings~~Financings and (ii) any other Securitization Assets subject to Liens securing Permitted Securitization Financing; (m) to the extent constituting a Disposition, any termination, settlement, extinguishment or unwinding of obligations in respect of any Hedging Agreement; (n) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) to the extent the consideration received consists of assets, at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~5,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~18,000,000~~10,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of ~~Holdings or~~ the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (no) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the ~~Holdings Guarantee and Pledge Agreement or the~~ Subsidiary Guarantee ~~Agreement, as applicable,~~ Agreement confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (op) ~~any Disposition to effect~~ Dispositions in connection with the ~~formation~~ exercise of any ~~Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition~~ subscriptions, options, warrants, puts, calls or other ~~allocation of any assets (including any equity interests of such Delaware Divided LLC~~ rights or ~~Delaware Divided LP) in connection therewith is otherwise permitted hereunder~~commitments pursuant to agreements set forth on Schedule 3.08(b). Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, (ii) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (iiiii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (iiiii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $~~20,000,000~~ 10,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $~~250,000,000~~ 20,000,000 and ~~0.10~~ 0.20 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (iiiii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received~~) and~~ ), (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 50,000,000 and ~~0.05~~ 0.50 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), (d) the amount of Indebtedness of any Subsidiary that is no longer a Subsidiary as a result of such Asset Sale, to the extent that the Borrower and each other Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale and (e) consideration consisting of Indebtedness of the Borrower or a Subsidiary (other than Indebtedness that is subordinated in right of payment to the Loan Obligations) received from persons who are not the Borrower or a Subsidiary in connection with the Asset Sale and that is cancelled. For purposes of this Agreement, the fair market value of any assets acquired, leased, exchanged, Disposed of, sold, conveyed or transferred by the Borrower or any Subsidiary shall be determined in good faith by the Borrower and may be determined either, at the option of the Borrower, at the time of such acquisition, lease, exchange, Disposition, sale, conveyance or transfer, as applicable, or as of the date of the definitive agreement with respect to such acquisition, lease, exchange, Disposition, sale, conveyance or transfer, as applicable.

Appears in 1 contract

Samples: Credit Agreement (Cerence Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any ~~Subsidiary,~~ Subsidiary or (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section ~~6.04~~6.07; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the ~~Subsidiaries~~Subsidiaries (including any Disposition of foreign Intellectual Property rights); (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange of assets for services and/or other assets ~~used or useful in a Similar Business~~ of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~18,000,000~~24,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result ~~therefrom,~~ therefrom and (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required ~~thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance;~~thereby; and (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each ~~Guarantor~~Guarantor (other than Holdings), unless it is the other party to such merger or consolidation, shall have by a supplement to the ~~Holdings Guarantee and Pledge Agreement or the~~ Subsidiary Guarantee ~~Agreement, as applicable,~~ Agreement confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) ~~consist~~ consists of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $~~20,000,000~~ 18,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $~~250,000,000~~ 60,000,000 and ~~0.10 times~~ 10.80% of Consolidated Total Assets as of the ~~EBITDA calculated on a Pro Forma Basis for~~ end of the then most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 90,000,000 and ~~0.05 times~~ 16.20% of Consolidated Total Assets as of the ~~EBITDA calculated on a Pro Forma Basis for~~ end of the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value). Notwithstanding anything to the contrary contained in Section 6.05 above, the Borrower and the Subsidiaries shall not make any Trademark Disposition (whether in one transaction or in a series of related transactions), except for (i) any Trademark Disposition among the Borrower and the Subsidiary Loan Parties, (ii) any Trademark Disposition of any Excluded Trademark and (iii) any Trademark Disposition with the consent of the Required Lenders.

Appears in 1 contract

Samples: Second Lien Credit Agreement (Hostess Brands, Inc.)

Appears in 1 contract

Samples: Credit Agreement (EVERTEC, Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of the Borrower or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of ~~related~~ transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the ~~sale of receivables pursuant to~~ non-recourse sale or factoring ~~arrangements~~of receivables that are owned by any Foreign Subsidiary, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary, (iv) ~~assignments~~ the assignment by the Borrower ~~and~~ or any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the ~~Target~~ Seller of its representations and warranties set forth ~~therein or~~ therein, (v) the Disposition of Permitted Investments in the ordinary course of ~~business~~business or (vi) the non-recourse factoring of receivables pursuant to a factoring program sponsored by a retailer of national standing in partnership with one or more financial institutions; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any ~~consideration (unless otherwise permitted by Section 6.04)~~consideration, (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the ~~Lenders,~~ Lenders or (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a ~~Subsidiary (unless otherwise permitted by Section 6.04)~~Subsidiary, which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.11; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made either (i) on terms that are substantially no less favorable to such Loan Party, as applicable, then would be obtained in ~~compliance~~ a comparable arm’s-length transaction with a person that is not an Affiliate, as determined by the Board of Directors of such Loan Party in good faith or (ii) be counted as an Investment to the extent of any shortfall below fair market value and permitted to the extent permitted by Section ~~6.04~~6.07; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts ~~receivables~~ receivable financing transaction; (g) ~~other~~ Dispositions of ~~assets~~assets not otherwise permitted by this Section 6.05; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section ~~2.11(b) to the extent required thereby~~2.12(c); (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~corporation; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of its Subsidiaries; provided, that the ~~Subsidiaries~~Net Proceeds thereof are applied in accordance with Section 2.12(c); (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of ~~Securitization~~ Receivables Assets ~~including~~ pursuant to Permitted ~~Securitization~~ Receivables Financings; (m) any exchange of assets for services and/or other assets ~~used or useful in a Similar Business~~ of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~10,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~18,000,000~~20,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result ~~therefrom,~~ therefrom and (B) the Net Proceeds, if any, thereof are applied in accordance with Section ~~2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance;~~2.12(c); and (n) ~~if at~~ Dispositions not otherwise permitted by this Section 6.05; provided, that the ~~time~~ aggregate gross proceeds thereof shall not exceed, in any Fiscal Year of the Borrower, $20,000,000; provided further, that (A) amounts not fully utilized in any Fiscal Year may be carried forward and ~~immediately after giving effect thereto~~ utilized in the next Fiscal Year and (B) no Default or Event of Default ~~shall have~~ has occurred and be is continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) ~~or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d),~~ shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), ~~or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and~~ (ii) ~~at least 75%~~ no Default or Event of ~~the proceeds of~~ Default has occurred and is continuing or would result therefrom and (iii) such Disposition (except to Loan Parties) ~~consist of~~ is for at least 75% cash ~~or Permitted Investments~~consideration; provided, that the provisions of this clause (iiiii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $~~20,000,000~~ 10,000,000 or to other transactions involving assets with a fair market value ~~(as determined in good faith by the Borrower)~~ of not more than the greater of $~~250,000,000~~ 30,000,000 and ~~0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period~~ 3.0% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (iiiii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the ~~Borrower’s~~ Borrower or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such ~~assets~~ assets, or ~~are~~ otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 30,000,000 and ~~0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended~~ 3.0% of Consolidated Total Assets immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).

Appears in 1 contract

Samples: First Lien Credit Agreement (DS Services of America, Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge ~~into~~ into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or ~~Dispose~~ sell, transfer, lease or otherwise dispose of (in one transaction or in a series of ~~related~~ transactions) all or any part of its assets (whether now owned or hereafter acquired), or ~~Dispose~~ issue, sell, transfer or otherwise dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of ~~related~~ transactions) all or substantially all of the assets of any other ~~person or division or line of business of a~~ person, except that this Section ~~6.05~~ shall not prohibit: (a) (i) the purchase and ~~Disposition~~ sale of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by ~~the~~ any Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by ~~the~~ any Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the applicable Borrower), (iii) the ~~Disposition~~ sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by ~~the~~ any Borrower or any ~~Subsidiary,~~ Subsidiary or (iv) ~~assignments by~~ the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein sale or ~~(v) the Disposition~~ disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Borrower or Subsidiary into or with ~~or into the~~ any other Borrower in a transaction in which ~~the~~ a Borrower is the survivor, (ii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Borrower (other than the Company) or Subsidiary into or with ~~or into~~ any ~~Subsidiary~~ Loan Party in a transaction in which the surviving or resulting entity is ~~or becomes~~ a ~~Subsidiary~~ Loan Party and, in the case of each of clauses (i) and (ii), no person other than ~~the Borrower or~~ a ~~Subsidiary~~ Loan Party receives any ~~consideration (unless otherwise permitted by Section 6.04)~~consideration, (iii) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary that is not a ~~Subsidiary~~ Loan Party into or with ~~or into~~ any other Subsidiary that is not a ~~Subsidiary~~ Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Borrower (other than the Company) or any Subsidiary if the ~~Borrower~~ Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the ~~Borrower~~ Company or the Subsidiaries and is not materially disadvantageous to the ~~Lenders,~~ Lenders or (v) any Borrower (other than the Company) or Subsidiary may ~~merge~~ merge, consolidate or ~~consolidate~~ amalgamate into or with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a ~~Subsidiary (unless otherwise permitted by Section 6.04)~~Subsidiary, which shall be a Loan Party if the ~~merging~~ merging, consolidating or ~~consolidating~~ amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.10; (c) ~~Dispositions~~ sales, transfers, leases or other dispositions to ~~the~~ a Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any ~~Dispositions~~ sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a ~~Subsidiary~~ Loan Party in reliance on this ~~clause~~ paragraph (c) shall ~~be made~~ not in ~~compliance with Section 6.04~~the aggregate exceed, in any fiscal year of the Borrower, $10.0 million; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted ~~Liens~~ Liens, and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) ~~Dispositions~~ the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) sales, transfers, leases, licenses or other ~~Dispositions~~ dispositions of ~~assets~~assets not otherwise permitted by this Section 6.05; provided, that (i) no Default or Event of Default exists or would result therefrom, (ii) with respect to any such sale, transfer, lease or other disposition with aggregate gross proceeds (including noncash proceeds) in excess of $25.0 million, immediately after giving effect thereto, the Borrowers shall be in Pro Forma Compliance, (iii) the Net Proceeds ~~thereof, if any,~~ thereof are applied in accordance with Section 2.11(b), (iv) such sale, transfer or other disposition of assets shall be for fair market value (as determined in good faith by the Company), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04 and (v) no such sale, transfer or other disposition of assets in excess of $25 million shall be permitted unless such disposition is for at least 75% cash consideration; provided, that for purposes of this subclause (g)(v), each of the following shall be deemed to be cash: (A) the amount of any liabilities (as shown on any Borrower’s or any Subsidiary’s most recent balance sheet or in the notes thereto) of any Borrower or any Subsidiary of such Borrower (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (B) any notes or other obligations or other securities or assets received by such Borrower or such Subsidiary of such Borrower from such transferee that are converted by such Borrower or such Subsidiary of such Borrower into cash within 180 days of the receipt thereof (to the extent ~~required thereby;~~of the cash received), (C) any Designated Non-Cash Consideration received by such Borrower or any of its Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the applicable Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this subclause (g)(v)(C) that is at that time outstanding, not to exceed $175.0 million (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) and (D) with respect to any lease of assets by a Borrower or a Subsidiary that constitutes a disposition, receipt of lease payments over time on market terms (as determined in good faith by the applicable Borrower) where the payment consideration is at least 75% cash consideration. (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving ~~the~~ a Borrower, ~~the~~ such Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~corporation; (i) leases, ~~licenses~~ licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) ~~Dispositions~~ sales, leases or other dispositions of inventory or ~~Dispositions~~ sales, licenses, sublicenses or other dispositions or abandonment of ~~Intellectual Property~~ intellectual property of ~~the~~ any Borrower ~~and~~ or any of its Subsidiaries determined ~~in good faith~~ by the management of ~~the~~ such Borrower to be no longer useful or necessary in the operation of the business of ~~the~~ such Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of ~~clause~~ paragraph (a) of the definition of “Net Proceeds”; (l) the purchase and ~~Disposition~~ sale or other transfer (including by capital contribution) of ~~Securitization~~ Receivables Assets ~~including~~ pursuant to Permitted ~~Securitization~~ Receivables Financings; (m) any exchange of assets for services and/or other assets ~~used or useful in a Similar Business~~ of comparable or greater ~~value~~value (other than any such exchanges by a Borrower or Subsidiary with a Person that is an Affiliate of any Borrower or Subsidiary); provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the ~~Borrower~~Company) in excess of $~~12,000,000~~25.0 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the ~~Borrower~~ Company with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the ~~Borrower~~Company) in excess of $~~18,000,000~~35.0 million, such exchange shall have been approved by at least a majority of the Board of Directors of ~~Holdings or~~ the ~~Borrower~~Company; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) with respect to any such exchange with aggregate gross consideration in excess of $5.0 million, immediately after giving effect thereto, the Borrowers shall be in Pro Forma Compliance, and (C) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b~~) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance~~); (n) ~~if at~~ any disposition, merger, consolidation or amalgamation in connection with the ~~time thereof~~ Post-Closing Restructuring Transaction; (o) any disposition made pursuant to an Operations Management Agreement; and (p) (i) the lease, sublease or license of any portion of any project to persons who, either directly or through Affiliates of such persons, intend to operate or manage nightclubs, bars, restaurants, recreation areas, spas, pools, exercise or gym facilities, or entertainment or retail venues or similar or related establishments or facilities within such project and ~~immediately after giving effect thereto~~ (ii) the grant of declarations of covenants, conditions and restrictions and/or easements with respect to common area spaces and similar instruments benefiting such tenants of such leases, subleases and licenses generally and/or entered into connection with a project (collectively, the “Venue Easements,” and together with any such leases, subleases or licenses, collectively the “Venue Documents”); provided that (A) no Event of Default shall ~~have occurred~~ exist and be continuing at the time any such Venue Document is entered into or would occur as a result ~~therefrom~~of entering into such Venue Document, ~~any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or~~ (B) if the ~~surviving entity is not~~ Loan Parties shall be required to maintain control (which may be through required contractual standards) over the ~~Borrower~~ primary aesthetics and standards of service and quality of the business being operated or conducted in connection with any such leased, subleased or licensed space and (C) no Venue Document or operations conducted pursuant thereto would reasonably be expected to materially interfere with, or materially impair or detract from, the operations of the Borrowers and the Subsidiaries; provided further that upon request by the Company, the Collateral Agent on behalf of the Secured Parties shall provide the tenant, subtenant or licensee under any Venue Document with a subordination, non-disturbance and attornment agreement substantially in the form of Exhibit L-1 or Exhibit L-2 hereto, as applicable, or in such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form as is reasonably satisfactory to the ~~Administrative Agent,~~ Collateral Agent and the applicable Loan Party; (3q) ~~each Guarantor, unless it is~~ the dedication of space or other ~~party to such merger~~ dispositions of property in connection with and in furtherance of constructing structures or ~~consolidation, shall have by a supplement~~ improvements reasonably related to the ~~Holdings Guarantee~~ development, construction and ~~Pledge Agreement~~ operation of any project; provided that in each case such dedication or other dispositions are in furtherance of, and do not materially impair or interfere with the operations of the Borrowers and the Subsidiaries; (r) dedications of, or the ~~Subsidiary Guarantee Agreement~~granting of easements, ~~as applicable~~rights of way, ~~confirmed that its guarantee thereunder shall apply~~ rights of access and/or similar rights, to any ~~Successor Borrower’s obligations under~~ Governmental Authority, utility providers, cable or other communication providers and/or other parties providing services or benefits to any project, any Real Property held by the Loan Parties or the public at large that would not reasonably be expected to interfere in any material respect with the operations of the Borrowers and the Subsidiaries; and (s) any disposition of Equity Interests of a Subsidiary pursuant to an agreement or other obligation with or to a person (other than the Borrowers and the Subsidiaries) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition. To the extent any Collateral is sold or disposed of in a transaction expressly permitted by this ~~Agreement, (4) each~~ Section 6.05 to any person other than any Borrower or any Subsidiary Loan Party, ~~unless it is~~ such Collateral shall be sold or disposed of free and clear of the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested Liens created by the ~~Administrative Agent~~Loan Documents (provided that, ~~an opinion~~ for the avoidance of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfieddoubt, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to ~~Sale and Lease-Back Transactions referred to in clause (b)(y)~~ any disposal consisting of ~~Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower),~~ an operating lease or ~~if not for fair market value~~license, the ~~shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of~~ underlying property retained by such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the BorrowerLoan Party will not be so released), ~~taken together with all other Designated Non-Cash Consideration received pursuant~~ and the Administrative Agent shall take, and is hereby authorized by each Lender to ~~this clause (c) that is at that time outstanding~~take, ~~not~~ any actions reasonably requested by such Borrower in order to ~~exceed~~ evidence the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value)foregoing.

Appears in 1 contract

Samples: First Lien Credit Agreement (CAESARS ENTERTAINMENT Corp)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other similar property by the Borrower or any Subsidiary in the ordinary course of business or consistent with past practice or industry norm or determined in good faith by the Borrower to be no longer used or useful or necessary in the operation of the business of the Borrower or any Subsidiary, or (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary of the Borrower with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party (or, in the case of any merger or consolidation involving the Borrower, is the Borrower) and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Doc#: US1:15347125v11 Subsidiary (unless otherwise permitted by Section 6.04), which shall be (x) a Loan Party if the merging or consolidating Subsidiary was a Loan Party and (y) the Borrower if such merger or consolidation involves the Borrower (in each case, unless otherwise permitted by Section 6.04) and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to ~~the Borrower or~~ a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) (i) Investments permitted by Section ~~6.04~~6.04 (other than by reference to this Section 6.05), Permitted Liens and Restricted Payments permitted by Section 6.06 (other than by reference to this Section 6.05) and (ii) any Disposition made pursuant to ~~the Merger Agreement~~any Reorganization; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section ~~2.11(b)~~ 2.11 to the extent required thereby; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, ~~the Borrower~~ such person is the surviving entity or the requirements of Section ~~6.05(n~~6.05(o) are otherwise complied with; (i) leases, licenses or subleases or sublicenses of any real or personal property or Intellectual Property or assignments of the same in the ordinary course of business; provided, that any such license of Intellectual Property does not constitute a Disposition of Material Intellectual Property to an Unrestricted Subsidiary (other than any Securitization Entity in connection with or in contemplation of a Permitted Securitization Financing); (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and ~~its~~ the Subsidiaries determined in good faith ~~by the management of the Borrower~~ to be no longer ~~useful or necessary~~ useful, necessary, otherwise not material in the operation of the business of the Borrower or any of the ~~Subsidiaries~~Subsidiaries or no longer economical to maintain; (k) ~~acquisitions~~ Dispositions in an amount not to exceed the greater of $12,500,000 and ~~purchases made with~~ 0.05 times the ~~proceeds of~~ EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period in the aggregate for all such Dispositions during any ~~Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”~~Fiscal Year; (l) ~~the purchase and Disposition~~ Dispositions (including by capital contribution) of assets to Securitization ~~Assets including pursuant to~~ Entities in connection with any Permitted Securitization ~~Financings~~Financing; (m) to the extent constituting a Disposition, any termination, settlement or extinguishment of obligations in respect of any Hedging Agreement; (n) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that ~~(i)~~ to the extent at least 90% of the consideration received by the transferor consists of assets or services that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that ~~(A)~~ no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance;; Doc#: US1:15347125v11 (no) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary of the Borrower or any other person (other than Holdings) may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor ~~Borrower~~Company”), (1) the Successor ~~Borrower~~ Company shall be an entity organized or existing under the laws of the United ~~States, any state thereof, the District~~ States of ~~Columbia or any territory thereof,~~ America and (2) the Successor ~~Borrower~~ Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative ~~Agent~~Agent (or, ~~(3) each Guarantor, unless it is~~ at the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor option of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor ~~Borrower shall have delivered~~ Company, new Loan Documents in substantially similar form or such other form reasonably satisfactory to the Administrative ~~Agent~~ Agent); (xp) ~~an officer’s certificate stating~~ Dispositions of the Equity Interests of any Unrestricted Subsidiary; provided, that, except to the extent contemplated under the Existing Securitization Facility as of the Closing Date (and as such Existing Securitization Facility may be further amended, restated, supplemented or otherwise modified from time to time solely to the extent that such ~~merger~~ amendment, restatement, supplement or ~~consolidation does~~ other modification did not ~~violate this Agreement~~ require the consent or direction of any of the Control Party, the Controlling Class Representative or any ~~other Loan Document and~~ Noteholder (yeach, as defined therein) ~~if requested by the Administrative Agent, an opinion of counsel to the effect that such merger~~ thereunder) or ~~consolidation does not violate this Agreement or~~ in any substantially similar provision in any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted forPermitted Securitization Documents, the Borrower ~~under this Agreement~~shall not Dispose of the Equity Interests of any Securitization Entity to any person other than a Guarantor (or any person that will become a Guarantor substantially concurrently with such Disposition); (q) Dispositions in connection with refranchising transactions; and (or) to the extent constituting a Disposition, any ~~Disposition~~ deposit of cash payable to ~~effect the formation of~~ or belonging to any ~~Subsidiary that is a Delaware Divided LLC or Delaware Divided LP~~ Securitization Entity as required by and ~~would otherwise not be prohibited hereunder; provided that~~ in accordance with any ~~disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder~~Permitted Securitization Documents. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (~~b)(y~~y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for at least fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of ~~less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of~~ not more than the greater of $~~250,000,000~~ 25,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test ~~Period in the aggregate for all such transactions during the term of this Agreement~~Period; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received~~) and~~ ), (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 62,500,000 and ~~0.05~~ 0.25 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), (d) the amount of Indebtedness of any Doc#: US1:15347125v11 Subsidiary that is no longer a Subsidiary as a result of the Asset Sale, to the extent that Holdings, the Borrower and each other Subsidiary are released from any guarantee of payment of such Indebtedness in connection with such Asset Sale and (e) consideration consisting of Indebtedness of the Borrower or a Subsidiary (other than Indebtedness that is subordinated in right of payment to the Loan Obligations) received from persons who are not Holdings, the Borrower or a Subsidiary in connection with the Asset Sale and that is cancelled. For purposes of this Section 6.05, the fair market value of any assets Disposed of by the Borrower or any Subsidiary shall be determined in good faith by the Borrower and may be determined either, at the option of the Borrower, at the time of such Disposition or as of the date of the definitive agreement with respect to such Disposition. Furthermore, any Disposition otherwise permitted under this Section 6.05 will not permit, except to the extent contemplated under the Existing Securitization Facility as of the Closing Date (and as such Existing Securitization Facility may be further amended, restated, supplemented or otherwise modified from time to time solely to the extent that such amendment, restatement, supplement or other modification did not require the consent or direction of any of the Control Party, the Controlling Class Representative or any Noteholder (each, as defined therein) thereunder) or in any substantially similar provision in any other Permitted Securitization Documents, any Disposition by a Loan Party of the Equity Interests of any Securitization Entity to any person other than the Borrower or a Guarantor that remains a Guarantor (or any person that will become a Guarantor substantially concurrently with such Disposition). For purposes of determining compliance with this Section 6.05, (A) a Disposition need not be permitted solely by reference to one category of permitted Disposition (or any portion thereof) described in this Section 6.05 but may be permitted in part under any combination thereof and (B) in the event that a Disposition (or any portion thereof) meets the criteria of one or more of the categories of permitted Disposition (or any portion thereof) described this Section 6.05, the Borrower may, in its sole discretion, classify or reclassify, or later divide, classify or reclassify (as if incurred at such later time) such Disposition (or any portion thereof) in any manner that complies with this Section 6.05 and at the time of such Disposition, classification or reclassification will be entitled to only include the amount and type of such Disposition (or any portion thereof) in one of the above clauses (or any portion thereof) and such Disposition (or any portion thereof) will be treated as being made or existing pursuant to only such clause or clauses (or any portion thereof) without giving pro forma effect to such item (or any portion thereof) when calculating the amount of Dispositions that may be made, classified or reclassified pursuant to any other clause (or portion thereof) at such time.

Appears in 1 contract

Samples: Credit Agreement (Driven Brands Holdings Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge ~~into~~ into, amalgamate with or consolidate with any other ~~person~~Person, or permit any other ~~person~~ Person to merge ~~into~~ into, amalgamate with or consolidate with it, or ~~Dispose~~ sell, transfer, lease or otherwise dispose of (in one transaction or in a series of ~~related~~ transactions) all or any part of its assets (whether now owned or hereafter acquired), or ~~Dispose~~ issue, sell, transfer or otherwise dispose of any Equity Interests of Borrower or any ~~Subsidiary~~Subsidiary Guarantor or other Restricted Subsidiary of Borrower, or purchase, lease or otherwise acquire (in one transaction or a series of ~~related~~ transactions) all or any substantial part of the assets of any other ~~person~~ Person or, except as permitted by Section 10.1.8(a), liquidate, wind up or ~~division~~ dissolve itself (or ~~line of business of a person~~suffer any liquidation or dissolution), except that this Section ~~6.05~~ shall not prohibit: (a) (i) the purchase and ~~Disposition~~ sale of inventory, or supplies, materials and equipment and the purchase and sale of ~~receivables pursuant to non-recourse factoring arrangements~~rights or licenses or leases of Intellectual Property, in each case in the ordinary course of business by ~~the~~ Borrower or any ~~Subsidiary~~of its Restricted Subsidiaries, (ii) the ~~acquisition or lease (pursuant to an operating lease)~~ sale of any other asset in the ordinary course of business by ~~the~~ Borrower or any ~~Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower)~~Restricted Subsidiary, (iii) the ~~Disposition~~ sale of surplus, ~~obsolete, damaged~~ obsolete or worn out equipment or other property in the ordinary course of business by ~~the~~ Borrower or any ~~Subsidiary,~~ of its Restricted Subsidiaries or (iv) ~~assignments by~~ the ~~Borrower and any Subsidiary in connection with insurance arrangements~~ sale of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments Cash Equivalents in the ordinary course of business; provided, that, in the case of each such sale, Borrower shall provide an updated Borrowing Base Report to the extent and within the deadline required by Section 8.1.1; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be ~~continuing or would result therefrom~~continuing, (i) the merger or consolidation of any Restricted Subsidiary ~~with or~~ into ~~the~~ Borrower in a transaction in which ~~the~~ Borrower is the ~~survivor~~surviving entity; provided that, to the extent that such Restricted Subsidiary is a Subsidiary Guarantor, all actions (if any) required, necessary or appropriate to comply with Section 10.1.9 of this Agreement with respect to any Collateral acquired by Borrower from such Restricted Subsidiary shall have been taken on or prior to the consummation of the merger or consolidation to the extent necessary to be taken by such time in order to maintain the Lien under the Security Documents on such Collateral, (ii) the merger or consolidation of any Restricted Subsidiary into or with Borrower or ~~into~~ any Subsidiary ~~Loan Party~~ Guarantor in a transaction in which the surviving or resulting entity is ~~or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the~~ Borrower or a Subsidiary ~~Loan Party receives~~ Guarantor; provided that, to the extent that such Restricted Subsidiary is a Subsidiary Guarantor, all actions (if any) required, necessary or appropriate to comply with Section 10.1.9 of this Agreement with respect to any ~~consideration (unless otherwise permitted~~ Collateral acquired by ~~Section 6.04)~~Borrower or any Subsidiary Guarantor from such Restricted Subsidiary shall have been taken on or prior to the consummation of the merger or consolidation to the extent necessary to be taken by such time in order to maintain the Lien under the Security Documents on such Collateral, (iii) the ~~merger~~ merger, amalgamation or consolidation of any Restricted Subsidiary that is not a Subsidiary ~~Loan Party~~ Guarantor into or with ~~or into~~ any other Restricted Subsidiary that is not a Subsidiary ~~Loan Party~~Guarantor, (iv) the ~~liquidation~~ liquidation, winding up or dissolution or change in form of entity of any Restricted Subsidiary if ~~the~~ Borrower determines in good faith that such liquidation, winding up, dissolution or change in form is in the best interests of Borrower and is not materially disadvantageous to the Lenders or (v) the change in form of entity of Borrower if Borrower determines in good faith that such change in form is in the best interests of Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) ~~Dispositions~~ sales, transfers, leases or other dispositions (i) to Borrower or to a Restricted Subsidiary; provided that, to the extent such acquiring entity is Borrower or a Subsidiary Guarantor, all actions (if any) required, necessary or appropriate to comply with Section 10.1.9 of this Agreement with respect to any Collateral acquired by the acquiring entity shall have been taken on or prior to the consummation of the applicable disposition to the extent necessary to be taken by such time in order to maintain the Lien under the Security Documents on such Collateral and (ii) to an Unrestricted Subsidiary of Borrower (in the case of clause (i) or (ii), upon voluntary liquidation or otherwise); provided, that any ~~Dispositions~~ sales, transfers, leases or other dispositions by Borrower or a ~~Loan Party~~ Restricted Subsidiary to a an Unrestricted Subsidiary ~~that is not a Subsidiary Loan Party in reliance on this clause (c)~~ shall be made in compliance with Section ~~6.04~~10.2.9; and provided, further, that (A) the aggregate gross proceeds of any sales, transfers, leases or other dispositions by Borrower or a Restricted Subsidiary to an Unrestricted Subsidiary in reliance upon this paragraph (c) and the aggregate gross proceeds of any or all assets sold, transferred or leased in reliance upon paragraph (g) below shall not exceed, in any Fiscal Year of Borrower, 5.0% of Consolidated Total Assets as of the end of the immediately preceding Fiscal Year and (B) with respect to any disposition pursuant to this paragraph (c)(ii), Borrower shall provide an updated Borrowing Base Report to the extent and within the deadline required by Section 8.1.1; (d) Sale and Lease-Back Transactions permitted by Section ~~6.03;~~ 10.2.3; (e~~) (i~~) Investments permitted by Section ~~6.04~~10.2.5, ~~Permitted~~ Liens ~~and Restricted Payments~~ permitted by Section ~~6.06~~ 10.2.2 and ~~(ii) any Disposition made pursuant to the Merger Agreement~~dividends and distributions permitted by Section 10.2.4; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).

Appears in 1 contract

Samples: Loan and Security Agreement (Summit Midstream Partners, LP)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and Disposition of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Borrower or any ~~Subsidiary~~Subsidiary or the conversion of accounts receivable to notes receivable, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property by the Borrower or any Subsidiary in the ordinary course of business or consistent with past practice or determined in good faith by the Borrower to be no longer used or useful or necessary in the operation of the business of the Borrower or any Subsidiary, or (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any ~~Subsidiary~~ Subsidiary, if the Borrower determines in good faith that such liquidation, dissolution or change in form is advisable or in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party (unless otherwise permitted by Section 6.04) and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted ~~Business~~ Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted ~~Business~~ Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section ~~6.05(n~~6.05(o) are otherwise complied with; (i) leases, assignments, licenses or subleases or sublicenses of any real or personal property in the ordinary course of ~~business~~business or consistent with past practice; (j) Dispositions of inventory or sales, transfers, dedication to the public, abandonment or other Dispositions ~~or abandonment~~ of Intellectual Property of the Borrower and its Subsidiaries determined ~~in good faith~~ by the management of the ~~Borrower~~ Borrower, in its reasonable business judgment, to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of (i) Securitization Assets including pursuant to Permitted Securitization ~~Financings~~Financings and (ii) any other Securitization Assets subject to Liens securing Permitted Securitization Financing; (m) to the extent constituting a Disposition, any termination, settlement, extinguishment or unwinding of obligations in respect of any Hedging Agreement; (n) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) to the extent the consideration received consists of assets, at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~5,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~18,000,000~~10,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of ~~Holdings or~~ the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (no) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the ~~Holdings Guarantee and Pledge Agreement or the~~ Subsidiary Guarantee ~~Agreement, as applicable,~~ Agreement confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (op) ~~any Disposition to effect~~ Dispositions in connection with the ~~formation~~ exercise of any ~~Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition~~ subscriptions, options, warrants, puts, calls or other ~~allocation of any assets (including any equity interests of such Delaware Divided LLC~~ rights or ~~Delaware Divided LP) in connection therewith is otherwise permitted hereunder~~commitments pursuant to agreements set forth on Schedule 3.08(b). Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, (ii) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (iiiii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (iiiii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $~~20,000,000~~ 10,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $~~250,000,000~~ 20,000,000 and ~~0.10~~ 0.20 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (iiiii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received~~) and~~ ), (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 50,000,000 and ~~0.05~~ 0.50 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), (d) the amount of Indebtedness of any Subsidiary that is no longer a Subsidiary as a result of such Asset Sale, to the extent that the Borrower and each other Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale and (e) consideration consisting of Indebtedness of the Borrower or a Subsidiary (other than Indebtedness that is subordinated in right of payment to the Loan Obligations) received from persons who are not the Borrower or a Subsidiary in connection with the Asset Sale and that is cancelled. For purposes of this Agreement, the fair market value of any assets acquired, leased, exchanged, Disposed of, sold, conveyed or transferred by the Borrower or any Subsidiary shall be determined in good faith by the Borrower and may be determined either, at the option of the Borrower, at the time of such acquisition, lease, exchange, Disposition, sale, conveyance or transfer, as applicable, or as of the date of the definitive agreement with respect to such acquisition, lease, exchange, Disposition, sale, conveyance or transfer, as applicable.

Appears in 1 contract

Samples: Credit Agreement (Cerence Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), effect any Delaware LLC Division or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (~~a) (~~i) the ~~purchase and~~ purchase, discount or Disposition of equipment, inventory, accounts receivable, notes receivable or other assets or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business or consistent with past practice or industry norm by the Borrower or any ~~Subsidiary~~Subsidiary or the conversion of accounts receivable to notes receivable, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business or consistent with past practice or industry norm by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property by the Borrower or any Subsidiary in the ordinary course of business or consistent with past practice or industry norm or determined in good faith by the Borrower to be no longer used or useful or necessary in the operation of the business of the Borrower or any ~~Subsidiary~~Subsidiary or no longer economically practicable or commercially reasonable to maintain, (iv) the Disposition of any Customer Notes in the ordinary course of business, (v) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, ~~the Merger Agreement~~ any definitive agreement related to any acquisition or Investment in respect of any breach by the ~~Target~~ parties thereto of ~~its~~ their representations and warranties set forth ~~therein or~~ therein, (vvi) the Disposition of Permitted Investments in the ordinary course of business, (vii) the Disposition of property or equipment or the abandonment of Intellectual Property rights that is determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of, or material to the conduct of the business of, the Borrower or any of the Subsidiaries or (viii) foreclosure, condemnation, expropriation, forced disposition or any similar action with respect to any property or other asset of the Borrower or any of its Subsidiaries; (b) ~~if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom,~~ (i) the liquidation, dissolution, merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the ~~survivor~~survivor or the requirements of Section 6.05(o) are otherwise complied with, (ii) the merger or consolidation of any Subsidiary with or into any other Subsidiary ~~Loan Party~~ in a transaction in which the surviving or resulting entity is or becomes a Subsidiary ~~Loan Party~~ and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary ~~Loan Party~~ receives any consideration (unless otherwise permitted by Section 6.04), (iii) ~~the~~ [reserved], (iv) liquidation, dissolution or merger or consolidation of any Subsidiary ~~that is not a Subsidiary Loan Party~~ with or into the Borrower or any other ~~Subsidiary that is not a Subsidiary Loan Party~~Subsidiary, (ivv) the ~~liquidation or dissolution or~~ change in form of entity of the Borrower or any Subsidiary if the Borrower determines in good faith that such ~~liquidation, dissolution or~~ change in form is advisable or in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (vvi) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be the Borrower or a Subsidiary (unless otherwise permitted by Section 6.04), ~~which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party~~ and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vivii) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise)~~; provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04~~; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) ~~(i)~~ Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of assets; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section ~~6.05(n~~6.05(o) are otherwise complied with; (i) leases, assignments, licenses or subleases or sublicenses of any real or personal property in the ordinary course of ~~business~~business or consistent with past practice or industry norm; (j) Dispositions of inventory or equipment or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of, or material to the conduct of the business of, the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of (i) Securitization Assets including pursuant to Permitted Securitization Financings, (ii) any other Securitization Assets subject to Liens securing Permitted Securitization Financing and (iii) receivables in connection with a receivables financing; (m) to the extent constituting a Disposition, any termination, settlement, extinguishment or unwinding of obligations in respect of any Hedging Agreement; (n) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) to the extent the consideration received consists of assets, at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted ~~hereunder,~~ hereunder and (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $12,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $18,000,00020,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance; (no) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be liquidated, dissolved, merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state ~~thereof,~~ thereof or the District of ~~Columbia or any territory thereof~~Columbia, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to the foregoing clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to the foregoing clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such ~~merger~~ liquidation, dissolution, merger, amalgamation or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such ~~merger~~ liquidation, dissolution, merger, amalgamation or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); (p) Dispositions in connection with the exercise of any subscriptions, options, warrants, puts, calls or other rights or commitments pursuant to agreements set forth on Schedule 3.08(b); (q) Dispositions of property or assets (i) acquired after the Closing Date which property or assets are not used or useful to the core or principal business of the Borrower and the Subsidiaries in the good faith determination of the Borrower or (ii) that are made in connection with the approval of any applicable antitrust authority or as otherwise necessary or advisable in the good faith determination of the Borrower to consummate any Permitted Business Acquisition, New Project, Investment or other transaction, including in connection with the Transactions; and (or) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC ~~or Delaware Divided LP~~ and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any ~~equity interests~~ Equity Interests of such Delaware Divided ~~LLC or Delaware Divided LP~~LLC) in connection therewith is otherwise permitted hereunder. Following the consummation of any liquidation, dissolution, merger, amalgamation or consolidation of the Borrower as provided in Section 6.05(o) above, all references in this Agreement and the other Loan Documents to the Borrower shall automatically be deemed to refer to the Successor Borrower and the Borrower and/or the Successor Borrower and the Administrative Agent shall be permitted to amend this Agreement and the other Loan Documents to reflect the occurrence of such liquidation, dissolution, merger, amalgamation or consolidation and the resulting organizational structure of the Successor Borrower and its Subsidiaries. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $~~20,000,000~~ 5,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $~~250,000,000~~ 12,300,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes ~~thereto~~thereto or, if incurred or increased subsequent to the date of such balance sheet, such liabilities that would have been shown on the Borrower’s or such Subsidiary’s balance sheet or in the notes thereto if such incurrence or increase had taken place on or prior to the date of such balance sheet, as determined by the Borrower) of the Borrower or any Subsidiary that are assumed by the transferee of any such assets (or a third party in connection with such transfer) or are otherwise cancelled or terminated in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received~~) and~~ ), (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 37,000,000 and ~~0.05~~ 0.30 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), (d) the amount of Indebtedness of any Subsidiary that is no longer a Subsidiary as a result of such Asset Sale, to the extent that Holdings, the Borrower and each other Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale and (e) consideration consisting of Indebtedness of the Borrower or a Subsidiary (other than Indebtedness that is subordinated in right of payment to the Loan Obligations) received from persons who are not Holdings, the Borrower or a Subsidiary in connection with the Asset Sale and that is cancelled or otherwise extinguished. For purposes of this Agreement, the fair market value of any assets acquired, leased, exchanged, Disposed of, sold, conveyed or transferred by the Borrower or any Subsidiary shall be determined in good faith by the Borrower and may be determined either, at the option of the Borrower, at the time of such acquisition, lease, exchange, Disposition, sale, conveyance or transfer, as applicable, or as of the date of the definitive agreement with respect to such acquisition, lease, exchange, Disposition, sale, conveyance or transfer, as applicable.

Appears in 1 contract

Samples: First Lien Credit Agreement (PlayAGS, Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit: (~~a) (~~i) the purchase and Disposition of inventory~~, or the sale of receivables pursuant to non-recourse factoring arrangements~~, in each case in the ordinary course of business by the Borrower or any Subsidiary, (ii) Permitted Non-Recourse Factoring Transactions, (iii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (~~iii~~iv) the Disposition of surplus, obsolete, damaged or worn out ~~equipment or~~ equipment, (v) the Disposition of other property in the ordinary course of business by the Borrower or any ~~Subsidiary, (iv) assignments~~ Subsidiary or determined in good faith by the Borrower ~~and~~ to be no longer useful or necessary in the operation of the business of the Borrower or any ~~Subsidiary in connection with insurance arrangements of their rights and remedies under~~Subsidiary, ~~and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein~~ or (vvi) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, so long as all assets of such Subsidiary upon dissolution thereof are transferred to the Borrower or any Subsidiary Loan Party, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party (unless otherwise permitted by Section 6.04) and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05; (c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04; (d) ~~Sale and Lease-Back Transactions permitted by Section 6.03~~[reserved]; (e~~) (i~~) Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section ~~6.06 and (ii) any Disposition made pursuant to the Merger Agreement~~6.06; (f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) other Dispositions of ~~assets~~assets in an aggregate amount not to exceed over the term of this Agreement the greater of $30,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; provided, that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby; (h) Permitted Business Acquisitions permitted under Section 6.04(k) (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving ~~entity or the requirements of Section 6.05(n) are otherwise complied with~~entity; (i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business; (j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Borrower and its Subsidiaries determined in ~~good faith~~ the reasonable business judgment by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) ~~acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”~~[reserved]; (l) to the ~~purchase and Disposition (including by capital contribution)~~ extent constituting a Disposition, any termination, settlement or extinguishment of ~~Securitization Assets including pursuant to Permitted Securitization Financings~~obligations in respect of any Hedging Agreement; (m) any exchange of assets for services and/or other assets used or useful in a Similar Business of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~12,000,000~~5,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $~~18,000,000~~10,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required ~~thereby and~~ thereby, (C) with respect to any exchange of assets for services, immediately after giving effect thereto, the Borrower shall be in Pro Forma ~~Compliance~~Compliance and (D) the aggregate amount of exchanges of assets pursuant to this clause (m) shall not exceed the greater of $15,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; (n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary ~~or any other person~~ may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent, an opinion of counsel to the effect that such merger or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement); and (o) ~~any Disposition to effect~~ Dispositions of DVD and Blu-ray movies and video games and other goods held for rental or sale in the ~~formation~~ ordinary course of ~~any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP~~ operation of the business of the Borrower and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunderthe Subsidiaries. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) ~~or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d),~~ shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $~~20,000,000~~ 2,500,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $~~250,000,000~~ 10,000,000 and ~~0.10~~ 0.033 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $~~150,000,000~~ 5,000,000 and ~~0.05~~ 0.0165 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be cash.

Appears in 1 contract

Samples: Incremental Assumption and Amendment Agreement (Redbox Entertainment Inc.)

Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, liquidate, wind up or ~~Dispose~~ dissolve itself (or suffer any liquidation or dissolution), or change its jurisdiction of organization to a jurisdiction outside of the United States, or convey, sell, lease or sub lease (as lessor or sublessor), exchange, transfer or otherwise dispose of (in one transaction or in a series of ~~related~~ transactions) all or any part of its assets or property of any kind whatsoever (whether now owned or hereafter acquired), or ~~Dispose~~ issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of ~~related~~ transactions) all or any substantial part of the assets or stock of any other person or ~~division~~ any division, unit or ~~line of~~ business of a any person, except that this Section 6.05 shall not prohibit: (a) (i) the purchase and ~~Disposition of inventory, or the~~ sale of ~~receivables pursuant to non~~raw materials and inventory (including, without limitation, work-~~recourse factoring arrangements, in each case~~ in-process and finished goods inventory) in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any ~~Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower)~~Subsidiary, (iii) the ~~Disposition~~ sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary, or (iv) ~~assignments by~~ the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Merger Agreement in respect of any breach by the Target of its representations and warranties set forth therein or (v) the Disposition sale of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the ~~merger~~ merger, consolidation or ~~consolidation~~ amalgamation of any Subsidiary ~~with~~ into (or ~~into~~ with) the Borrower in a transaction in which the Borrower is the survivor, (ii) the ~~merger~~ merger, consolidation or amalgamation or consolidation of any Subsidiary into or with ~~or into~~ any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any ~~consideration (unless otherwise permitted by Section 6.04)~~consideration, (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party into or with ~~or into~~ any other Subsidiary that is not a Subsidiary Loan Party, (iv) the ~~liquidation~~ liquidation, winding up or dissolution or change in form of entity of any Subsidiary (other than a Loan Party) if the Borrower determines in good faith that such liquidation, winding up, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to any Agent or the Lenders, or (v) any Subsidiary may ~~merge~~ merge, consolidate or ~~consolidate~~ amalgamate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a ~~Subsidiary (unless otherwise permitted by Section 6.04)~~Subsidiary, which shall be a Loan Party if the ~~merging~~ merging, consolidating or ~~consolidating~~ amalgamating Subsidiary was a Loan Party and which together with each of its ~~Subsidiaries~~ subsidiaries shall have complied with ~~any applicable~~ the requirements of Section ~~5.10 or (vi) any Subsidiary may merge or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05~~5.10; (c) ~~Dispositions~~ sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); ~~provided,~~ provided that any ~~Dispositions~~ sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this ~~clause (c~~Section 6.05(c) shall be made in compliance with Section ~~6.04~~6.07, and shall not in the aggregate exceed, when determined together with Investments permitted under Section 6.04(a), $25.0 million outstanding; provided that (i) with respect to any sale, transfer, lease or other disposition made under this clause (c), no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) the Net Proceeds of any sales, transfers, leases or other dispositions made pursuant to this Section 6.05(c) by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party shall be applied to prepay the Loans pursuant to Section 2.08(b) hereof; (d) Sale and ~~Lease-~~Lease Back Transactions permitted by Section 6.03; (e) (i) dispositions of cash and Permitted Investments to the extent constituting Investments permitted by Section ~~6.04, Permitted Liens~~ 6.04 and ~~Restricted Payments~~ dividends permitted by Section 6.06 and (ii) ~~any Disposition made pursuant to~~ dispositions constituting Permitted Liens and the ~~Merger Agreement~~transactions listed on Schedule 3.08(b); (f) ~~Dispositions~~ the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) sales, transfers, leases, licenses or other ~~Dispositions~~ dispositions of assets not otherwise permitted by this Section 6.05; provided that (i) no Default or Event of Default exists or would result therefrom, (ii) the aggregate gross proceeds (including non-cash proceeds) of any or all assets sold, transferred, leased, licensed or otherwise disposed of in reliance upon this Section 6.05(g), together with the aggregate gross consideration (including exchange assets~~; provided~~, ~~that~~ other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon Section 6.05(k), shall not exceed, in any fiscal year of the ~~Net Proceeds thereof~~Borrower, ~~if any~~$60.0 million and (iii) with respect to any such sale, ~~are applied~~ transfer, lease, license or other disposition with gross proceeds (including non-cash proceeds) in ~~accordance with Section 2.11(b) to~~ excess of $5.0 million, immediately after giving effect thereto, the ~~extent required thereby~~Borrower shall be in Pro Forma Compliance; (h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with[reserved]; (i) leases, ~~licenses~~ licenses, or subleases or sublicenses of any real or personal property granted in the ordinary course of business, to the extent not otherwise prohibited by this Agreement; (j) ~~Dispositions~~ sales, leases or other dispositions of inventory ~~or Dispositions or abandonment of Intellectual Property~~ of the Borrower and ~~its~~ the Subsidiaries determined ~~in good faith~~ by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of clause (a) of the definition of “Net Proceeds”; (l) the purchase and Disposition (including by capital contribution) of Securitization Assets including pursuant to Permitted Securitization Financings; (m) any exchange of assets for services and/or other assets ~~used or useful in a Similar Business~~ of comparable or greater value; ~~provided,~~ provided that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value ~~(as determined in good faith by the Borrower)~~ in excess of $~~12,000,000~~10.0 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market ~~value~~ value, and (iii) in the event of a swap with a fair market value ~~(as determined in good faith by the Borrower)~~ in excess of $~~18,000,000~~20.0 million, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this Section 6.05(k), together with the aggregate gross proceeds (including non-cash proceeds) of any or all assets sold, transferred, leased, licensed or otherwise disposed of in reliance upon Section 6.05(g), shall not exceed, in any fiscal year of the Borrower, $60.0 million, (B) no Default or Event of Default exists or would result therefrom, (~~B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b) to the extent required thereby and (~~C) with respect to any such exchange with aggregate gross consideration in excess of ~~assets for services~~$5.0 million, immediately after giving effect thereto, the Borrower shall be in Pro Forma ~~Compliance~~Compliance and (D) if any assets that constitute Non-ABL Priority Collateral are the subject of such exchange, then the Borrower or the applicable Loan Party shall receive assets of comparable or greater value that constitute Non-ABL Priority Collateral in exchange therefor; (nl) ~~if at the time thereof~~ exchanges of assets between CWPC and ~~immediately after giving effect thereto no Event of Default shall have occurred and be continuing~~ one or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Borrower, provided that (A) the Borrower shall be the surviving entity or (B) if the surviving entity is not the Borrower (such other person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower shall expressly assume all the obligations more of the Borrower ~~under this Agreement~~ and any Subsidiary Loan Party through the ~~other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to~~ division of land between respective mill, utility and hydroelectric assets for the ~~Administrative Agent~~owned Real Property located at Wisconsin Rapids, ~~(3) each Guarantor~~Wisconsin; provided that, unless ~~it is the other party to such merger or consolidation, shall have~~ otherwise agreed by a supplement to the Holdings Guarantee and Pledge Agreement or the Subsidiary Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) ~~an officer’s certificate stating that~~ the aggregate fair market value of the Real Property or other assets being received by the applicable Loan Party is approximately equal to or greater than the fair market value of the assets being transferred by such ~~merger or consolidation does not violate this Agreement or any other~~ Loan ~~Document and~~ Party in such exchange, (y) ~~if requested~~ the exchange of assets by the ~~Administrative Agent, an opinion of counsel~~ parties to the ~~effect~~ transaction is substantially simultaneous and (z) the assets received by such Loan Party shall not be subject to any contractual obligation that limits the ability of such ~~merger~~ Loan Party to create, incur, assume or ~~consolidation does not violate~~ suffer to exist any Lien on such assets to secure the Loan Obligations (such transactions pursuant to this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfiedSection 6.05(l), collectively, the ~~Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement~~“Permitted Land Swaps”); and (o) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC or Delaware Divided LP and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC or Delaware Divided LP) in connection therewith is otherwise permitted hereunder. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided, that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value (as determined in good faith by the Borrower) of less than $20,000,000 or to other transactions involving assets with a fair market value (as determined in good faith by the Borrower) of not more than the greater of $250,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period in the aggregate for all such transactions during the term of this Agreement; provided, further, that ~~for purposes~~ (i) the fair market value of Non-ABL Priority Collateral transferred pursuant to this ~~clause~~ Section 6.05(l) shall not exceed $1.0 million in the aggregate and (ii) if any Non-ABL Priority Collateral is transferred pursuant to this Section 6.05(l), ~~each of~~ the applicable Loan Party must receive Non-ABL Priority Collateral in exchange; (m) Permitted Business Acquisitions (including any merger or consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided that immediately following any such merger or consolidation or amalgamation, (i) involving the Borrower, the Borrower is the surviving corporation, (ii) involving a Subsidiary Loan Party, the surviving or resulting entity shall be ~~deemed to~~ a Subsidiary Loan Party, and (iii) involving a Subsidiary that is not a Subsidiary Loan Party, the surviving or resulting entity shall be ~~cash:~~ a Wholly-Owned Subsidiary; (an) sales or other dispositions of xxxxx, including through the ~~amount~~ sale of Equity Interests of any ~~liabilities (as shown on the Borrower’s~~ Subsidiary owning or ~~such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of~~ operating any such ~~assets~~ mill; provided that (i) no Default or ~~are otherwise cancelled in connection with such transaction~~Event of Default exists or would result therefrom, (bii) ~~any notes~~ no sale or other ~~obligations~~ disposition shall be permitted by this Section 6.05(n) unless such sale or other ~~securities or assets received by the Borrower or such Subsidiary from the transferee~~ disposition is for at least 75% cash consideration; provided that ~~are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c)~~ any Designated Non-Cash Consideration received by the Borrower or any of ~~its~~ the Subsidiaries in such ~~Disposition~~ sale or other disposition having an aggregate fair market ~~value (as determined in good faith by the Borrower)~~value, taken together with all other Designated Non-Cash Consideration received pursuant to this ~~clause (c~~Section 6.05(n) or pursuant to the last proviso to the last paragraph of this Section 6.05 that is at that time outstanding, not to exceed $15.0 million at the ~~greater~~ time of ~~$150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the Test Period ended immediately prior to~~ the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) shall be deemed to be cash and (iii) the Net Proceeds of any sales or other dispositions made pursuant to this Section 6.05(n) shall be applied to prepay the Loans pursuant to Section 2.08(b) hereof; and (o) sales or assignments of (x) accounts receivable arising from sales of goods or services by a Loan Party to a customer and (y) related assets, in connection with which a commercial bank of national standing (acting in its own capacity or as agent on behalf of the customer) offers to purchase such accounts receivable on commercially reasonable terms from time to time in a manner that results in faster effective realization of such accounts receivable; provided that (i) no Default or Event of Default exists or would result therefrom, (ii) neither the Borrower nor any Subsidiary shall have any obligation, contingent or otherwise, in connection with such sale, other than to deliver the accounts receivable and related assets sold in such transaction free and clear of any encumbrance, (iii) such sale is for cash and fair market value, (iv) the number of Account Debtors whose accounts receivable are at any time subject to such sales or assignments shall be limited to three (3), and while such Account Debtors’ accounts receivable are subject to such sales or assignments, no Accounts of such Account Debtors shall constitute Eligible Accounts under the ABL Loan Documents (or otherwise be included in the borrowing base of any Indebtedness outstanding pursuant to Section 6.01(u)), and (v) accounts receivable subject to such sales or assignments must be capable of being fully segregated from other Accounts (including with respect to accounts receivable reporting, purchase orders, invoicing and payments). Notwithstanding anything to the contrary contained in this Section 6.05, (i) except for any sale, transfer or disposition of all (but not a portion of) the Equity Interests of any Subsidiaries in compliance with the provisions of Section 6.05 or a transaction permitted by Section 6.05(b), (c) or (n), no sale, transfer or other disposition of any Equity Interests of any Subsidiary shall be permitted by this Section 6.05, (ii) no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases, licenses or other dispositions to Loan Parties or from Subsidiaries that are not Loan Parties to other Subsidiaries that are not Loan Parties pursuant to Section 6.05(c)) unless such disposition is for fair market value, and (iii) no sale, transfer or other disposition of assets shall be permitted by Section 6.05(a) or (f) unless such disposition is for at least 75% cash consideration; provided that the provisions of this clause (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $2.5 million (provided that such transactions do not involve assets with a fair market value of more than $15.0 million in the aggregate for all such transactions during the term of this Agreement); provided, further, that for purposes of this clause (iii), any Designated Non-Cash Consideration received by the Borrower or any of the Subsidiaries in such sale, transfer or other disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause proviso or pursuant to Section 6.05(n) above that is at that time outstanding, not to exceed $15.0 million at the time of the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) shall be deemed to be cash. To the extent that any Collateral is disposed of in a transaction expressly permitted by this Section 6.05 to any person other than Holdings, the Borrower or any Subsidiary Loan Party, such Collateral (but not the proceeds thereof) shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent and the Collateral Agent shall take, and shall be authorized by each Lender to take, any actions reasonably requested by the Borrower in order to evidence the foregoing.

Appears in 1 contract

Samples: Senior Secured Term Loan Agreement (Verso Corp)

Common use of Mergers, Consolidations, Sales of Assets and Acquisitions Clause in Contracts