Fundamental Changes; Disposition of Assets. No Credit Party shall, nor shall it permit any OZ Subsidiary to, consummate any merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever (including, for the avoidance of doubt, any Asset Sale) outside of the ordinary course of business, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, except: (a) any Credit Party may be merged with or into another Credit Party, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to a Credit Party; (b) any Credit Party and any OZ Subsidiary may convey, transfer or otherwise dispose of Equity Interests in the Issuer delivered pursuant to the terms of restricted share units issued by such Credit Party or OZ Subsidiary; (c) any Credit Party may be merged, wound up, dissolved, or consolidated with or into, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any other Person (including the Issuer or any Subsidiary of the Issuer) except for any Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary or any OZ Subsidiary or Owned Entity thereof other than an OZ Fund; provided that such Credit Party is the surviving entity; (d) any OZ Subsidiary that is not a Credit Party may be merged, wound up, dissolved, or consolidated with or into, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any other OZ Subsidiary that is not a Credit Party or any other Person or Subsidiary (other than a Credit Party); provided that an OZ Subsidiary is the surviving entity or the surviving entity becomes an OZ Subsidiary (and if the transferring Subsidiary was a wholly-owned Subsidiary of a Credit Party, a wholly-owned Subsidiary of a Credit Party) upon consummation of such merger or consolidation; provided, further, that any Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary (or any OZ Subsidiary or Owned Entity thereof other than an OZ Fund) shall not be merged or consolidated with or into any Non-SPVS; (e) any Credit Party can be merged, wound up, dissolved, or consolidated with or into, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any of Issuer, Och-Ziff Corp, Och-Ziff Holding, any New Advisor that is not a New Advisor Guarantor, or any New Advisor Subsidiary; provided that, in the case of a merger or consolidation of a Credit Party with or into any such Person, (i) such Credit Party is the surviving entity or (ii) the surviving Person or the acquiring Person agrees to assume, and expressly assumes, all of the obligations of such Credit Party hereunder and under the other Credit Documents pursuant to an agreement in form and substance reasonably satisfactory to the Requisite Lenders, and such surviving Person or acquiring Person shall be organized and existing under the laws of the United States or any state thereof or the District of Columbia; (f) any Credit Party or any OZ Subsidiary may enter into mergers and consolidations solely to effect asset acquisitions; provided that (i) if any Credit Party is party to such transaction, (x) such Credit Party shall be the continuing or surviving entity or (y) the surviving Person or the acquiring Person shall agree to assume, and shall expressly assume, all of the obligations of such Credit Party hereunder and under the other Credit Documents pursuant to an agreement in form and substance reasonably satisfactory to the Requisite Lenders, and such surviving Person or acquiring Person shall be organized and existing under the laws of the United States or any state thereof or the District of Columbia, (ii) if any OZ Subsidiary is a party to such transaction, (x) such OZ Subsidiary shall be the continuing or surviving entity or (y) the surviving entity shall become an OZ Subsidiary upon consummation of such merger or consolidation, in the case of clauses (x) and (y) unless a Credit Party is also a party to such transaction, in which case clause (i) shall apply, and (iii) such asset acquisitions and other transactions effected by such merger or consolidation are otherwise permitted under the Credit Documents without giving effect to this clause (f); (g) sales, leases, subleases, licenses, sublicenses, exchanges, transfers or other dispositions of assets that do not constitute Asset Sales; (h) Asset Sales (other than a sale of all or substantially all assets of the Credit Parties and the OZ Subsidiaries, taken as a whole) so long as (i) no Event of Default has occurred and is continuing, or would result therefrom, determined as of the date that the definitive agreement for such Asset Sale is entered into, (ii) the Borrowers are in pro forma compliance with the financial covenants set forth in Section 6.10 as of the last day of the Fiscal Quarter most recently ended prior to such date for which financial statements have been delivered pursuant to Section 5.01 or 3.01, (iii) the consideration received for such sale of assets shall be in an amount equal to the fair market value thereof (determined in good faith by any Borrower), and (iv) at least 75% of such consideration is paid in Cash and Cash Equivalents, provided that the following shall be deemed to be Cash: (x) any liabilities that are assumed or paid by the transferee with respect to the applicable Asset Sale, (y) any securities received by the Credit Parties or any OZ Subsidiary from such transferee that are converted by a Credit Party or OZ Subsidiary into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents so received) within 180 days following the closing of the applicable Asset Sale, and (z) any Designated Non-Cash Consideration received by the Credit Parties or the OZ Subsidiaries in respect of such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this Section 6.05(h) that is at that time outstanding, not in excess of $5,000,000 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 on the date a legally binding commitment for such Asset Sale (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes in value; (i) any OZ Subsidiary that is not a Credit Party may dissolve, liquidate or wind up its affairs at any time, and (ii) any Credit Party and any OZ Subsidiary may surrender or fail to maintain its rights, franchises, licenses and permits material to its business, provided that, in the cases of clauses (i) and (ii), such dissolution, liquidation, winding up, surrender or failure, as applicable, would not reasonably be expected to have a Material Adverse Effect; (j) [Reserved]; and (k) any Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary may convey, sell, lease or license, exchange, transfer or otherwise dispose of any of its assets to the extent constituting realization of Liens permitted under Section 6.02(y), (z) or (bb); provided, that any such transactions from such Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary to any Credit Party or any Non-SPVS shall not be made on terms that are substantially less favorable to such Credit Party or such Non-SPVS, as the case may be, than those that might be obtained in a comparable arms-length transaction at the time from a Person who is not an Affiliate of such Credit Party or Non-SPVS. It is understood and agreed that this Section 6.05 shall not prohibit any change in ownership of a Credit Party (other than any Credit Party that is also an OZ Subsidiary) that does not cause a Change of Control as long as such Person or the surviving or acquiring Person remains (or becomes) a Credit Party. Notwithstanding anything to the contrary in this Agreement, this Section 6.05 shall not prohibit a Credit Party or any OZ Subsidiary from changing its jurisdiction of organization (so long as such change results in such Person being organized and existing under the laws of the United States or any state thereof or the District of Columbia), its organizational name, its identity or organizational structure, its type or form, or from changing its Federal Taxpayer Identification Number or state organizational identification number.
Appears in 2 contracts
Sources: Governance Agreement (Och-Ziff Capital Management Group LLC), Senior Subordinated Term Loan and Guaranty Agreement (Och-Ziff Capital Management Group LLC)
Fundamental Changes; Disposition of Assets. No Credit Party shall, nor shall it permit any OZ Subsidiary to, consummate any merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever (including, for the avoidance of doubt, any Asset Sale) outside of the ordinary course of business, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, except:
(a) any Credit Party may be merged with or into another Credit Party, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to a Credit Party;
(b) any Credit Party and any OZ Subsidiary may convey, transfer or otherwise dispose of Equity Interests in the Issuer delivered pursuant to the terms of restricted share units issued by such Credit Party or OZ Subsidiary;
(c) any Credit Party may be merged, wound up, dissolved, or consolidated with or into, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any other Person (including the Issuer or any Subsidiary of the Issuer) except for any Qualifying Qualified Risk Retention Subsidiary or Alternate Investment Subsidiary or any OZ Subsidiary or Owned Entity thereof other than an OZ Fund; provided that such Credit Party is the surviving entity;
(d) any OZ Subsidiary that is not a Credit Party may be merged, wound up, dissolved, or consolidated with or into, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any other OZ Subsidiary that is not a Credit Party or any other Person or Subsidiary (other than a Credit Party); provided that an OZ Subsidiary is the surviving entity or the surviving entity becomes an OZ Subsidiary (and if the transferring Subsidiary was a wholly-owned Subsidiary of a Credit Party, a wholly-owned Subsidiary of a Credit Party) upon consummation of such merger or consolidation; provided, further, that any Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary (or any OZ Subsidiary or Owned Entity thereof other than an OZ Fund) shall not be merged or consolidated with or into any Non-SPVS;
(e) any Credit Party can be merged, wound up, dissolved, or consolidated with or into, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any of Issuer, Och-Ziff Corp, Och-Ziff Holding, any New Advisor that is not a New Advisor Guarantor, or any New Advisor Subsidiary; provided that, in the case of a merger or consolidation of a Credit Party with or into any such Person, (i) such Credit Party is the surviving entity or (ii) the surviving Person or the acquiring Person agrees to assume, and expressly assumes, all of the obligations of such Credit Party hereunder and under the other Credit Documents pursuant to an agreement in form and substance reasonably satisfactory to the Requisite Lenders, and such surviving Person or acquiring Person shall be organized and existing under the laws of the United States or any state thereof or the District of Columbia;
(f) any Credit Party or any OZ Subsidiary may enter into mergers and consolidations solely to effect asset acquisitions; provided that (i) if any Credit Party is party to such transaction, (x) such Credit Party shall be the continuing or surviving entity or (y) the surviving Person or the acquiring Person shall agree to assume, and shall expressly assume, all of the obligations of such Credit Party hereunder and under the other Credit Documents pursuant to an agreement in form and substance reasonably satisfactory to the Requisite Lenders, and such surviving Person or acquiring Person shall be organized and existing under the laws of the United States or any state thereof or the District of Columbia, (ii) if any OZ Subsidiary is a party to such transaction, (x) such OZ Subsidiary shall be the continuing or surviving entity or (y) the surviving entity shall become an OZ Subsidiary upon consummation of such merger or consolidation, in the case of clauses (x) and (y) unless a Credit Party is also a party to such transaction, in which case clause (i) shall apply, and (iii) such asset acquisitions and other transactions effected by such merger or consolidation are otherwise permitted under the Credit Documents without giving effect to this clause (f);
(g) sales, leases, subleases, licenses, sublicenses, exchanges, transfers or other dispositions of assets that do not constitute Asset Sales;
(h) Asset Sales (other than a sale of all or substantially all assets of the Credit Parties and the OZ Subsidiaries, taken as a whole) so long as (i) no Event of Default has occurred and is continuing, or would result therefrom, determined as of the date that the definitive agreement for such Asset Sale is entered into, (ii) the Borrowers are Borrower is in pro forma compliance with the financial covenants set forth in Section 6.10 as of the last day of the Fiscal Quarter most recently ended prior to such date for which financial statements have been delivered pursuant to Section 5.01 or 3.01, (iii) the consideration received for such sale of assets shall be in an amount equal to the fair market value thereof (determined in good faith by any the Borrower), and (iv) at least 75% of such consideration is paid in Cash and Cash Equivalents, provided that the following shall be deemed to be Cash: (x) any liabilities that are assumed or paid by the transferee with respect to the applicable Asset Sale, (y) any securities received by the Credit Parties or any OZ Subsidiary from such transferee that are converted by a Credit Party or OZ Subsidiary into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents so received) within 180 days following the closing of the applicable Asset Sale, and (z) any Designated Non-Cash Consideration received by the Credit Parties or the OZ Subsidiaries in respect of such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this Section 6.05(h) that is at that time outstanding, not in excess of $5,000,000 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 on the date a legally binding commitment for such Asset Sale (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes in value;
(i) any OZ Subsidiary that is not a Credit Party may dissolve, liquidate or wind up its affairs at any time, and (ii) any Credit Party and any OZ Subsidiary may surrender or fail to maintain its rights, franchises, licenses and permits material to its business, provided that, in the cases of clauses (i) and (ii), such dissolution, liquidation, winding up, surrender or failure, as applicable, would not reasonably be expected to have a Material Adverse Effect;
(j) [Reserved]; and
(k) any Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary may convey, sell, lease or license, exchange, transfer or otherwise dispose of any of its assets to the extent constituting realization of Liens permitted under Section 6.02(y), (z) or (bbz); provided, that any such transactions from such Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary to any Credit Party or any Non-SPVS shall not be made on terms that are substantially less favorable to such Credit Party or such Non-SPVS, as the case may be, than those that might be obtained in a comparable arms-length transaction at the time from a Person who is not an Affiliate of such Credit Party or Non-SPVS. It is understood and agreed that this Section 6.05 shall not prohibit any change in ownership of a Credit Party (other than any Credit Party that is also an OZ Subsidiary) that does not cause a Change of Control as long as such Person or the surviving or acquiring Person remains (or becomes) a Credit Party. Notwithstanding anything to the contrary in this Agreement, this Section 6.05 shall not prohibit a Credit Party or any OZ Subsidiary from changing its jurisdiction of organization (so long as such change results in such Person being organized and existing under the laws of the United States or any state thereof or the District of Columbia), its organizational name, its identity or organizational structure, its type or form, or from changing its Federal Taxpayer Identification Number or state organizational identification number.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Och-Ziff Capital Management Group LLC), Credit and Guaranty Agreement (Och-Ziff Capital Management Group LLC)
Fundamental Changes; Disposition of Assets. No Credit Each Loan Party shallshall not, nor and shall it not permit any OZ Subsidiary of its Subsidiaries to, consummate (i) enter into any merger or merger, consolidation, amalgamation or division, (ii) liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), (iii) consummate an Asset Sale or convey, (iv) sell, lease or licensetransfer, exchange, transfer license or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, assets or property of any kind whatsoever (including, for the avoidance of doubt, any Asset Sale) outside substantially all of the ordinary course assets of businessthe Borrower and its Subsidiaries, whether realtaken as a whole, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensedin each case, except:
(ai) any Credit Subsidiary of any Loan Party (other than the Borrower) may be merged enter into any merger, consolidation, amalgamation or division with or into another Credit such Loan Party or any other Subsidiary of such Loan Party, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred transferred, licensed or otherwise disposed of, in one transaction or a series of transactions, to a Credit Loan Party;
; provided, however, in the case of such a merger, consolidation, amalgamation or division involving a Loan Party and a Subsidiary of the Borrower that is not a Loan Party, such Loan Party shall be the continuing or surviving Person; provided further that in no event shall the Borrower be party to any merger, consolidation, amalgamation or division or be liquidated, wound up or dissolved, and (bii) any Credit Party and any OZ Subsidiary may convey, transfer or otherwise dispose of Equity Interests in the Issuer delivered pursuant to the terms of restricted share units issued by such Credit Party or OZ Subsidiary;
(c) any Credit that is not a Loan Party may enter into any merger, consolidation, amalgamation or division with or into any other Subsidiary that is not a Loan Party, or be mergedliquidated, wound up, up or dissolved, or consolidated with or into, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred transferred, licensed or otherwise disposed of, in one transaction or a series of transactions, to Subsidiary that is not a Loan Party;
(b) (i) any other Person Asset Sale to a Loan Party by another Loan Party or (including ii) any Asset Sale by a Subsidiary that is not a Loan Party to another Subsidiary that is not a Loan Party;
(c) Dispositions of delinquent accounts receivable in connection with the Issuer collection or any Subsidiary of compromise thereof in the Issuer) except for any Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary or any OZ Subsidiary or Owned Entity thereof other than Ordinary Course in an OZ Fund; provided that such Credit Party is the surviving entityArm’s-Length Transaction;
(d) leases or subleases (other than in respect of Intellectual Property) granted by any OZ Loan Party or any of its Subsidiaries to third parties in respect of surplus property which is not fundamental to the operation of the business in the Ordinary Course; provided that such leases and subleases are on arms-length commercial terms;
(e) so long as no Default has occurred and is continuing on the date of grant, (i) non-exclusive licenses and sublicenses in respect of Intellectual Property in the Ordinary Course and (ii) exclusive licenses and sublicenses in respect of the Intellectual Property relating to CD38, RTX or carcinoembryonic antigen so long as (x) the Loan Party or Subsidiary licensing such Intellectual Property receives aggregate non-refundable upfront consideration of at least $75,000,000 therefor (of which at least $50,000,000 shall consist of cash), (y) such license or sublicense is not to an Affiliate of the Borrower and (z) to the extent a Loan Party is the licensor or sublicensor, such proceeds and any rights to future payments pursuant to such license or sublicense shall not directly or indirectly be contributed to or invested in a Person that is not a Credit Party may be mergedLoan Party;
(f) sales or other dispositions of Equity Interests of a Subsidiary of the Borrower so long as (i) after giving effect to such transaction and any related transactions, wound up, dissolvedthe Borrower or Subsidiary that owned the Equity Interests of such Subsidiary immediately prior to such transactions continues to hold at least 70% of the Equity Interests of such Subsidiary measured by voting power and economic rights and shall continue to hold such Equity Interests on a going forward basis and (ii) to the extent such Subsidiary was, or consolidated with or intowas required to be, or all or any part of a Loan Party immediately prior to such transactions, such Subsidiary continues (x) to be a Loan Party following such transactions and on a going forward basis, (y) to guarantee the Obligations pursuant to the Guaranty following such transactions and on a going forward basis, and (z) to grant a valid first-priority security interest in its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed ofto secure the Obligations following such transactions and on a going forward basis, in one transaction or a series of transactionseach case, to any the same extent as would be required under this Agreement and the other OZ Loan Documents if such Subsidiary that is not a Credit Party or any other Person or Subsidiary (other than a Credit Party); provided that an OZ Subsidiary is the surviving entity or the surviving entity becomes an OZ Subsidiary (and if the transferring Subsidiary was were a wholly-owned Subsidiary of a Credit Party, a wholly-owned Subsidiary of a Credit Party) upon consummation of such merger or consolidation; provided, further, that any Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary (or any OZ Subsidiary or Owned Entity thereof other than an OZ Fund) shall not be merged or consolidated with or into any Non-SPVS;
(e) any Credit Party can be merged, wound up, dissolved, or consolidated with or into, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any of Issuer, Och-Ziff Corp, Och-Ziff Holding, any New Advisor that is not a New Advisor Guarantor, or any New Advisor Subsidiary; provided that, in the case of a merger or consolidation of a Credit Party with or into any such Person, (i) such Credit Party is the surviving entity or (ii) the surviving Person or the acquiring Person agrees to assume, and expressly assumes, all of the obligations of such Credit Party hereunder and under the other Credit Documents pursuant to an agreement in form and substance reasonably satisfactory to the Requisite Lenders, and such surviving Person or acquiring Person shall be organized and existing under the laws of the United States or any state thereof or the District of Columbia;
(f) any Credit Party or any OZ Subsidiary may enter into mergers and consolidations solely to effect asset acquisitions; provided that (i) if any Credit Party is party to such transaction, (x) such Credit Party shall be the continuing or surviving entity or (y) the surviving Person or the acquiring Person shall agree to assume, and shall expressly assume, all of the obligations of such Credit Party hereunder and under the other Credit Documents pursuant to an agreement in form and substance reasonably satisfactory to the Requisite Lenders, and such surviving Person or acquiring Person shall be organized and existing under the laws of the United States or any state thereof or the District of Columbia, (ii) if any OZ Subsidiary is a party to such transaction, (x) such OZ Subsidiary shall be the continuing or surviving entity or (y) the surviving entity shall become an OZ Subsidiary upon consummation of such merger or consolidation, in the case of clauses (x) and (y) unless a Credit Party is also a party to such transaction, in which case clause (i) shall apply, and (iii) such asset acquisitions and other transactions effected by such merger or consolidation are otherwise permitted under the Credit Documents without giving effect to this clause (f)Borrower;
(g) sales, leases, subleases, licenses, sublicenses, exchanges, transfers or other dispositions sales of assets that do not constitute Asset Sales;
(h) Asset Sales (other than a sale of all or substantially all assets of the Credit Parties and the OZ Subsidiaries, taken as a whole) Non-Core Assets in any Arm’s-Length Transaction so long as (i) the consideration for such sale is at least equal to the fair market value of the assets being sold, with at least 50% of such consideration consisting of cash, and (ii) the fair market value of all assets sold pursuant to this paragraph (g) shall not exceed $75,000,000 in the aggregate;
(h) other Asset Sales so long as (i) the consideration for any such Asset Sale is at least equal to the fair market value of the assets being sold, with at least 75% of such consideration consisting of cash, and (ii) the fair market value of all assets sold, transferred, leased, licensed or otherwise disposed of pursuant to this paragraph (h) shall not exceed $50,000,000 in the aggregate;
(i) so long as no Default or Event of Default has occurred and is continuing, continuing or would result therefrom, determined as any wholly-owned Subsidiary of the date that the definitive agreement for such Asset Sale is entered into, (ii) the Borrowers are Borrower may merge or consolidate with any Person other than another Subsidiary in pro forma compliance with the financial covenants set forth in Section 6.10 as of the last day of the Fiscal Quarter most recently ended prior order to such date for which financial statements have been delivered pursuant to Section 5.01 or 3.01, (iii) the consideration received for such sale of assets shall be in an amount equal to the fair market value thereof (determined in good faith by any Borrower), and (iv) at least 75% of such consideration is paid in Cash and Cash Equivalents, effect a Permitted Acquisition; provided that the following shall be deemed to be Cash: (x) any liabilities that are assumed or paid by the transferee with respect to the applicable Asset Sale, (y) any securities received by the Credit Parties or any OZ Subsidiary from such transferee that are converted by a Credit Party or OZ Subsidiary into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents so received) within 180 days following the closing of the applicable Asset Sale, and (z) any Designated Non-Cash Consideration received by the Credit Parties or the OZ Subsidiaries in respect of such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this Section 6.05(h) that is at that time outstanding, not in excess of $5,000,000 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 on the date a legally binding commitment for such Asset Sale (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes in value;
(i) in the case of any OZ Subsidiary that merger or consolidation involving a Loan Party, such Loan Party is not the continuing or surviving Person and remains a Credit Loan Party may dissolve, liquidate or wind up its affairs at any time, and (ii) any Credit Party and any OZ Subsidiary may surrender after giving effect to such merger or fail to maintain its rights, franchises, licenses and permits material to its business, provided that, in the cases of clauses (i) and (ii)consolidation, such dissolution, liquidation, winding up, surrender or failure, as applicable, would not reasonably Subsidiary continues to be expected to have a Material Adverse Effect;wholly-owned Subsidiary of the Borrower; and
(j) [Reserved]; and
(k) any Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary may convey, sell, lease or license, exchangesale, transfer or otherwise dispose of any of its assets to the extent constituting realization of Liens permitted under Section 6.02(y), (z) or (bb); provided, that any such transactions from such Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary to any Credit Party or any Non-SPVS shall not be made on terms that are substantially less favorable to such Credit Party or such Non-SPVS, as the case may be, than those that might be obtained in a comparable arms-length transaction at the time from a Person who is not an Affiliate of such Credit Party or Non-SPVS. It is understood and agreed that this Section 6.05 shall not prohibit any change in ownership of a Credit Party (other than any Credit Party that is also an OZ Subsidiary) that does not cause a Change of Control as long as such Person or the surviving or acquiring Person remains (or becomes) a Credit Party. Notwithstanding anything to the contrary in this Agreement, this Section 6.05 shall not prohibit a Credit Party or any OZ Subsidiary from changing its jurisdiction of organization (so long as such change results in such Person being organized and existing under the laws disposition of the United States or any state thereof or Equity Interests of the District of Columbia), its organizational name, its identity or organizational structure, its type or form, or from changing its Federal Taxpayer Identification Number or state organizational identification numberScilex Subsidiary.
Appears in 2 contracts
Sources: Term Loan Agreement (Sorrento Therapeutics, Inc.), Term Loan Agreement (Sorrento Therapeutics, Inc.)
Fundamental Changes; Disposition of Assets. No Credit Party shall, nor shall it permit any OZ Subsidiary of its Subsidiaries to, consummate enter into any transaction of merger or consolidationconsolidation (including through a plan of division), or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), consummate any Asset Sale, or convey, sell, lease or license, exchange, transfer or otherwise dispose Dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever (including, for the avoidance of doubt, any Asset Sale) outside of the ordinary course of businesswhatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased (as lessee), or licensedlicensed (as licensee), except:
(a) any Credit Party other than Holdings may be merged with or into another Credit Party, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to a another Credit Party;
(b) any Credit Party and any OZ Subsidiary may convey, transfer or otherwise dispose of Equity Interests in the Issuer delivered pursuant to the terms of restricted share units issued by such Credit Party or OZ Subsidiary;
(c) any Credit Party may be merged, wound up, dissolved, or consolidated with or into, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any other Person (including the Issuer or any Subsidiary of the Issuer) except for any Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary or any OZ Subsidiary or Owned Entity thereof other than an OZ Fund; provided that such Credit Party is the surviving entity;
(d) any OZ Subsidiary that is not a Credit Party may be merged, wound up, dissolved, or consolidated with or into, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any other OZ Subsidiary that is not a Credit Party or any other Person or Subsidiary (other than a Credit Party); provided that an OZ Subsidiary is the surviving entity or the surviving entity becomes an OZ Subsidiary (and if the transferring Subsidiary was a wholly-owned Subsidiary of a Credit Party, a wholly-owned Subsidiary of a Credit Party) upon consummation of such merger or consolidation; provided, further, that any Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary (or any OZ Subsidiary or Owned Entity thereof other than an OZ Fund) shall not be merged or consolidated with or into any Non-SPVS;
(e) any Credit Party can be merged, wound up, dissolved, or consolidated with or into, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any of Issuer, Och-Ziff Corp, Och-Ziff Holding, any New Advisor that is not a New Advisor Guarantor, or any New Advisor Subsidiary; provided that, in the case of a merger or consolidation of a Credit Party with or into any such Personmerger, (i) if such Credit Party is a Borrower, a Borrower shall be the surviving entity or Person, (ii) if such Credit Party is not a Mexican Subsidiary, a Credit Party that is not a Mexican Subsidiary shall be the surviving Person or the acquiring Person agrees to assumeand (iii) in any other case, and expressly assumes, all of the obligations of such Credit Party hereunder and under the other Credit Documents pursuant to an agreement in form and substance reasonably satisfactory to the Requisite Lenders, and such surviving Person or acquiring Person shall be organized and existing under the laws of the United States or any state thereof or the District of Columbia;
(f) any Credit Party or any OZ Subsidiary may enter into mergers and consolidations solely to effect asset acquisitions; provided that (i) if any Credit Party is party to such transaction, (x) such a Credit Party shall be the continuing or surviving entity Person; (b) in connection with a Permitted Acquisition, any Subsidiary of a Credit Party may merge with or (y) the surviving into or consolidate with any other Person or the acquiring permit any other Person shall agree to assumemerge with or into or consolidate with it; provided, and shall expressly assume, all of the obligations of that (i) if such Credit Party hereunder and under the other Credit Documents pursuant to an agreement in form and substance reasonably satisfactory to the Requisite Lendersis a Borrower, and such surviving Person or acquiring Person a Borrower shall be organized and existing under the laws of the United States or any state thereof or the District of Columbiasurviving Person, (ii) if such Credit Party is not a Mexican Subsidiary, a Credit Party that is not a Mexican Subsidiary shall be the surviving Person and (iii) in any OZ Subsidiary is other case, a party to such transaction, (x) such OZ Subsidiary Credit Party shall be the continuing or surviving entity or Person; (yc) the surviving entity shall become an OZ Subsidiary upon consummation of such merger or consolidation, in the case of clauses (x) and (y) unless a Credit Party is also a party to such transaction, in which case clause (i) shall apply, and (iii) such asset acquisitions and other transactions effected by such merger or consolidation are otherwise permitted under the Credit Documents without giving effect to this clause (f);
(g) sales, leases, subleases, licenses, sublicenses, exchanges, transfers sales or other dispositions of assets that do not constitute Asset Sales;
(h) Asset Sales (other than a sale of all or substantially all assets of the Credit Parties and the OZ Subsidiaries, taken as a whole) so long as (i) no Event of Default has occurred and is continuing, or would result therefrom, determined as of the date that the definitive agreement for such Asset Sale is entered into, (ii) the Borrowers are in pro forma compliance with the financial covenants set forth in Section 6.10 as of the last day of the Fiscal Quarter most recently ended prior to such date for which financial statements have been delivered pursuant to Section 5.01 or 3.01, (iii) the consideration received for such sale of assets shall be in an amount equal to the fair market value thereof (determined in good faith by any Borrower), and (iv) at least 75% of such consideration is paid in Cash and Cash Equivalents, provided that the following shall be deemed to be Cash: (x) any liabilities that are assumed or paid by the transferee with respect to the applicable Asset Sale, (y) any securities received by the Credit Parties or any OZ Subsidiary from such transferee that are converted by a Credit Party or OZ Subsidiary into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents so received) within 180 days following the closing of the applicable Asset Sale, and (z) any Designated Non-Cash Consideration received by the Credit Parties or the OZ Subsidiaries in respect of such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this Section 6.05(h) that is at that time outstanding, not in excess of $5,000,000 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 on the date a legally binding commitment for such Asset Sale (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes in value;
(i) any OZ Subsidiary that is not a Credit Party may dissolve, liquidate or wind up its affairs at any time, and (ii) any Credit Party and any OZ Subsidiary may surrender or fail to maintain its rights, franchises, licenses and permits material to its business, provided that, in the cases of clauses (i) and (ii), such dissolution, liquidation, winding up, surrender or failure, as applicable, would not reasonably be expected to have a Material Adverse Effect;
(j) [Reserved]; and
(k) any Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary may convey, sell, lease or license, exchange, transfer or otherwise dispose of any of its assets to the extent constituting realization of Liens permitted under Section 6.02(y), (z) or (bb); provided, that any such transactions from such Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary to any Credit Party or any Non-SPVS shall not be made on terms that are substantially less favorable to such Credit Party or such Non-SPVS, as the case may be, than those that might be obtained in a comparable arms-length transaction at the time from a Person who is not an Affiliate of such Credit Party or Non-SPVS. It is understood and agreed that this Section 6.05 shall not prohibit any change in ownership of a Credit Party (other than any Credit Party that is also an OZ Subsidiary) that does not cause a Change of Control as long as such Person or the surviving or acquiring Person remains (or becomes) a Credit Party. Notwithstanding anything to the contrary in this Agreement, this Section 6.05 shall not prohibit a Credit Party or any OZ Subsidiary from changing its jurisdiction of organization (so long as such change results in such Person being organized and existing under the laws of the United States or any state thereof or the District of Columbia), its organizational name, its identity or organizational structure, its type or form, or from changing its Federal Taxpayer Identification Number or state organizational identification number.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Lifecore Biomedical, Inc. \De\)
Fundamental Changes; Disposition of Assets. No Credit Each Loan Party shallshall not, nor and shall it not permit any OZ Subsidiary of its Subsidiaries to, consummate (i) enter into any merger or merger, consolidation, amalgamation or division, (ii) liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), (iii) consummate an Asset Sale or convey, (iv) sell, lease or licensetransfer, exchange, transfer license or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, assets or property of any kind whatsoever (including, for the avoidance of doubt, any Asset Sale) outside substantially all of the ordinary course assets of businessthe Borrower and its Subsidiaries, whether realtaken as a whole, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensedin each case, except:
(ai) any Credit Subsidiary of any Loan Party (other than the Borrower) may be merged enter into any merger, consolidation, amalgamation or division with or into another Credit such Loan Party or any other Subsidiary of such Loan Party, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred transferred, licensed or otherwise disposed of, in one transaction or a series of transactions, to a Credit Loan Party;
; provided, however, in the case of such a merger, consolidation, amalgamation or division involving a Loan Party and a Subsidiary of the Borrower that is not a Loan Party, such Loan Party shall be the continuing or surviving Person; provided further that in no event shall the Borrower be party to any merger, consolidation, amalgamation or division or be liquidated, wound up or dissolved, and (bii) any Credit Party and any OZ Subsidiary may convey, transfer or otherwise dispose of Equity Interests in the Issuer delivered pursuant to the terms of restricted share units issued by such Credit Party or OZ Subsidiary;
(c) any Credit that is not a Loan Party may enter into any merger, consolidation, amalgamation or division with or into any other Subsidiary that is not a Loan Party, or be mergedliquidated, wound up, up or dissolved, or consolidated with or into, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred transferred, licensed or otherwise disposed of, in one transaction or a series of transactions, to Subsidiary that is not a Loan Party;
(b) (i) any other Person Asset Sale to a Loan Party by another Loan Party or (including ii) any Asset Sale by a Subsidiary that is not a Loan Party to another Subsidiary that is not a Loan Party;
(c) Dispositions of delinquent accounts receivable in connection with the Issuer collection or any Subsidiary of compromise thereof in the Issuer) except for any Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary or any OZ Subsidiary or Owned Entity thereof other than Ordinary Course in an OZ Fund; provided that such Credit Party is the surviving entityArm’s-Length Transaction;
(d) leases or subleases (other than in respect of Intellectual Property) granted by any OZ Loan Party or any of its Subsidiaries to third parties in respect of surplus property which is not fundamental to the operation of the business in the Ordinary Course; provided that such leases and subleases are on arms-length commercial terms;
(e) so long as no Default has occurred and is continuing on the date of grant, (i) non-exclusive licenses and sublicenses in respect of Intellectual Property in the Ordinary Course, and (ii) exclusive licenses and sublicenses in respect of the Intellectual Property relating to CD38, RTX or carcinoembryonic antigen so long as (x) the Loan Party or Subsidiary licensing such Intellectual Property receives aggregate non-refundable upfront consideration of at least $75,000,000 therefor (of which at least $50,000,000 shall consist of cash), (y) such license or sublicense is not to an Affiliate of the Borrower and (z) to the extent a Loan Party is the licensor or sublicensor, such proceeds and any rights to future payments pursuant to such license or sublicense shall not directly or indirectly be contributed to or invested in a Person that is not a Credit Party may be mergedLoan Party;
(f) sales or other dispositions of Equity Interests of a Subsidiary of the Borrower so long as (i) after giving effect to such transaction and any related transactions, wound up, dissolvedthe Borrower or Subsidiary that owned the Equity Interests of such Subsidiary immediately prior to such transactions continues to hold at least 70% of the Equity Interests of such Subsidiary measured by voting power and economic rights and shall continue to hold such Equity Interests on a going forward basis and (ii) to the extent such Subsidiary was, or consolidated with or intowas required to be, or all or any part of a Loan Party immediately prior to such transactions, such Subsidiary continues (x) to be a Loan Party following such transactions and on a going forward basis, (y) to guarantee the Obligations pursuant to the Guaranty following such transactions and on a going forward basis, and (z) to grant a valid first-priority security interest in its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed ofto secure the Obligations following such transactions and on a going forward basis, in one transaction or a series of transactionseach case, to any the same extent as would be required under this Agreement and the other OZ Loan Documents if such Subsidiary that is not a Credit Party or any other Person or Subsidiary (other than a Credit Party); provided that an OZ Subsidiary is the surviving entity or the surviving entity becomes an OZ Subsidiary (and if the transferring Subsidiary was were a wholly-owned Subsidiary of a Credit Party, a wholly-owned Subsidiary of a Credit Party) upon consummation of such merger or consolidation; provided, further, that any Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary (or any OZ Subsidiary or Owned Entity thereof other than an OZ Fund) shall not be merged or consolidated with or into any Non-SPVS;
(e) any Credit Party can be merged, wound up, dissolved, or consolidated with or into, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any of Issuer, Och-Ziff Corp, Och-Ziff Holding, any New Advisor that is not a New Advisor Guarantor, or any New Advisor Subsidiary; provided that, in the case of a merger or consolidation of a Credit Party with or into any such Person, (i) such Credit Party is the surviving entity or (ii) the surviving Person or the acquiring Person agrees to assume, and expressly assumes, all of the obligations of such Credit Party hereunder and under the other Credit Documents pursuant to an agreement in form and substance reasonably satisfactory to the Requisite Lenders, and such surviving Person or acquiring Person shall be organized and existing under the laws of the United States or any state thereof or the District of Columbia;
(f) any Credit Party or any OZ Subsidiary may enter into mergers and consolidations solely to effect asset acquisitionsBorrower; provided that (i) if any Credit Party is party to no such transaction, (x) such Credit Party shall be the continuing or surviving entity or (y) the surviving Person or the acquiring Person shall agree to assume, and shall expressly assume, all of the obligations of such Credit Party hereunder and under the other Credit Documents pursuant to an agreement in form and substance reasonably satisfactory to the Requisite Lenders, and such surviving Person or acquiring Person shall be organized and existing under the laws of the United States or any state thereof or the District of Columbia, (ii) if any OZ Subsidiary is a party to such transaction, (x) such OZ Subsidiary shall be the continuing or surviving entity or (y) the surviving entity shall become an OZ Subsidiary upon consummation of such merger or consolidation, in the case of clauses (x) and (y) unless a Credit Party is also a party to such transaction, in which case clause (i) shall apply, and (iii) such asset acquisitions and other transactions effected by such merger or consolidation are otherwise permitted under the Credit Documents without giving effect to this clause (f);
(g) sales, leases, subleases, licenses, sublicenses, exchanges, transfers sales or other dispositions shall be made after the Amendment No. 2 Effective Date if at the time of assets that do not constitute Asset Sales;
(h) Asset Sales (such sale or other than a sale of all disposition any Default or substantially all assets of the Credit Parties and the OZ Subsidiaries, taken as a whole) so long as (i) no Event of Default has occurred and is continuing, continuing or would result therefrom, determined ;
(g) sales of Non-Core Assets in any Arm’s-Length Transaction so long as of the date that the definitive agreement for such Asset Sale is entered into, (ii) the Borrowers are in pro forma compliance with the financial covenants set forth in Section 6.10 as of the last day of the Fiscal Quarter most recently ended prior to such date for which financial statements have been delivered pursuant to Section 5.01 or 3.01, (iiii) the consideration received for such sale of assets shall be in an amount is at least equal to the fair market value thereof (determined in good faith by any Borrower)of the assets being sold, with at least 50% of such consideration consisting of cash, and (ivii) the fair market value of all assets sold pursuant to this paragraph (g) shall not exceed $75,000,000 in the aggregate; provided that no such sales shall be made after the Amendment No. 2 Effective Date if at the time of such sale or other disposition any Default or Event of Default has occurred and is continuing or would result therefrom;
(h) other Asset Sales so long as (i) the consideration for any such Asset Sale is at least equal to the fair market value of the assets being sold, with at least 75% of such consideration is paid in Cash and Cash Equivalents, provided that the following shall be deemed to be Cash: (x) any liabilities that are assumed or paid by the transferee with respect to the applicable Asset Sale, (y) any securities received by the Credit Parties or any OZ Subsidiary from such transferee that are converted by a Credit Party or OZ Subsidiary into Cash or Cash Equivalents (to the extent consisting of the Cash or Cash Equivalents so received) within 180 days following the closing of the applicable Asset Salecash, and (zii) any Designated Non-Cash Consideration received by the Credit Parties or the OZ Subsidiaries in respect of such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this Section 6.05(h) that is at that time outstanding, not in excess of $5,000,000 at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value of each item all assets sold, transferred, leased, licensed or otherwise disposed of Designated Non-Cash Consideration being measured on pursuant to this paragraph (h) shall not exceed $50,000,000 in the date a legally binding commitment for aggregate; provided that no such Asset Sale (or, Sales shall be made after the Amendment No. 2 Effective Date if later, for at the payment time of such item) was entered into sale or other disposition any Default or Event of Default has occurred and without giving effect to subsequent changes in valueis continuing or would result therefrom;
(i) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, any OZ wholly-owned Subsidiary of the Borrower may merge or consolidate with any Person other than another Subsidiary in order to effect a Permitted Acquisition; provided that (i) in the case of any merger or consolidation involving a Loan Party, such Loan Party is not the continuing or surviving Person and remains a Credit Loan Party may dissolve, liquidate or wind up its affairs at any time, and (ii) any Credit Party and any OZ Subsidiary may surrender after giving effect to such merger or fail to maintain its rights, franchises, licenses and permits material to its business, provided that, in the cases of clauses (i) and (ii)consolidation, such dissolution, liquidation, winding up, surrender or failure, as applicable, would not reasonably Subsidiary continues to be expected to have a Material Adverse Effect;wholly-owned Subsidiary of the Borrower; and
(j) [Reserved]any sale, transfer or other disposition of the Equity Interests of the Scilex Subsidiary; and
(k) any Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary may convey, sell, lease or license, exchange, transfer or otherwise dispose of any of its assets to the extent constituting realization of Liens permitted under Section 6.02(y), (z) or (bb); provided, that any such transactions from such Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary to any Credit Party or any Non-SPVS shall not be made on terms that are substantially less favorable to such Credit Party or such Non-SPVS, as the case may be, than those that might be obtained exclusive licenses and sublicenses in a comparable arms-length transaction at the time from a Person who is not an Affiliate of such Credit Party or Non-SPVS. It is understood and agreed that this Section 6.05 shall not prohibit any change in ownership of a Credit Party (other than any Credit Party that is also an OZ Subsidiary) that does not cause a Change of Control as long as such Person or the surviving or acquiring Person remains (or becomes) a Credit Party. Notwithstanding anything to the contrary in this Agreement, this Section 6.05 shall not prohibit a Credit Party or any OZ Subsidiary from changing its jurisdiction of organization (so long as such change results in such Person being organized and existing under the laws respect of the United States or any state thereof or Intellectual Property in connection with the District of Columbia), its organizational name, its identity or organizational structure, its type or form, or from changing its Federal Taxpayer Identification Number or state organizational identification numberSpecified Transactions.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. No Credit Loan Party shall, nor shall it permit any OZ Subsidiary of its Subsidiaries to, consummate ,
(a) enter into any transaction of merger or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or license, exchange, transfer or otherwise dispose of, in one transaction or including by means of a series “plan of transactions, all division” under the Delaware Limited Liability Company Act or any part of its business, assets or property of comparable transaction under any kind whatsoever (including, for the avoidance of doubt, any Asset Sale) outside of the ordinary course of business, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensedsimilar law, except:
(ai) (x) any Credit Subsidiary of the Company that is a Loan Party may be merged with or into another Credit Partya Borrower or any Guarantor Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to a Credit Party;
Borrower or any Guarantor Subsidiary; and (by) any Credit Party and any OZ CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION Subsidiary may convey, transfer or otherwise dispose of Equity Interests in the Issuer delivered pursuant to the terms of restricted share units issued by such Credit Party or OZ Subsidiary;
(c) any Credit Company that is not a Loan Party may be mergedmerged with or into a Borrower or any other Subsidiary, or be liquidated, wound up, up or dissolved, or consolidated with or into, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to a Borrower or any other Person Subsidiary; provided, that in each case of clauses (including x) and (y), in the Issuer case of such merger involving the Company, the Company shall be the continuing or surviving Person, in the case of such merger involving a Borrower, such Borrower shall be the continuing or surviving Person, and in the case of such merger not involving a Borrower but involving a Guarantor Subsidiary, such Guarantor Subsidiary shall be the continuing or surviving person;
(ii) Permitted Acquisitions, other Permitted Investments, and Asset Sales permitted by Section 6.9(b); or
(iii) any Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Borrowers determine in good faith that such action is in the best interests of the Issuer) except for any Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary or any OZ Subsidiary or Owned Entity thereof other than an OZ FundCompany and the Subsidiaries and is not materially disadvantageous to the Lenders; provided that if such Credit Subsidiary is a Loan Party is the surviving entity;any assets held by such Loan Party shall be transferred to another Loan Party or otherwise transferred in accordance with Section 6.9(b); or
(db) enter into or consummate any OZ Subsidiary that is not a Credit Party may be merged, wound up, dissolved, or consolidated with or into, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed ofAsset Sale, in one transaction or a series of transactions, to any other OZ Subsidiary that is not a Credit Party or any other Person or Subsidiary (other than a Credit Party); provided that an OZ Subsidiary is the surviving entity or the surviving entity becomes an OZ Subsidiary (and if the transferring Subsidiary was a wholly-owned Subsidiary of a Credit Party, a wholly-owned Subsidiary of a Credit Party) upon consummation of such merger or consolidation; provided, further, that any Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary (or any OZ Subsidiary or Owned Entity thereof other than an OZ Fund) shall not be merged or consolidated with or into any Non-SPVS;
(e) any Credit Party can be merged, wound up, dissolved, or consolidated with or into, or all or any part of its business, assets or property or assets may be conveyedof any kind whatsoever (including, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any of Issuer, Och-Ziff Corp, Och-Ziff Holdingwithout limitation, any New Advisor that is not a New Advisor GuarantorProduct (including, without limitation, any Intellectual Property rights related thereto), any Product Agreement (including, without limitation, any Loan Party’s rights thereunder), and any Registration), whether real, personal or any New Advisor mixed and whether tangible or intangible, whether now owned or hereafter acquired, or, except for (and in each case pursuant to arms’ length transactions on market terms and for fair market value (in each case, as reasonably determined by the Company or the applicable Subsidiary); provided that, in the case of a merger or consolidation of a Credit Party with or into that any such Person, Asset Sales with any Affiliate of the Company shall be subject to Section 6.12):
(i) such Credit Party is the surviving entity or Permitted Royalty Transactions;
(ii) the surviving Person or the acquiring Person agrees any Royalty Monetization Transaction for any Product (other than a Royalty Monetization Transaction (Core) with respect to assume, and expressly assumes, all of the obligations of such Credit Party hereunder and under the other Credit Documents pursuant to an agreement in form and substance reasonably satisfactory to the Requisite Lenders, and such surviving Person or acquiring Person shall be organized and existing under the laws of the United States or any state thereof or the District of Columbia;
(f) any Credit Party or any OZ Subsidiary may enter into mergers and consolidations solely to effect asset acquisitions; provided that (i) if any Credit Party is party to such transaction, (x) such Credit Party shall be the continuing or surviving entity or (y) the surviving Person or the acquiring Person shall agree to assume, and shall expressly assume, all of the obligations of such Credit Party hereunder and under the other Credit Documents pursuant to an agreement in form and substance reasonably satisfactory to the Requisite Lenders, and such surviving Person or acquiring Person shall be organized and existing under the laws of the United States or any state thereof or the District of Columbia, (ii) if any OZ Subsidiary is a party to such transaction, (x) such OZ Subsidiary shall be the continuing or surviving entity or (y) the surviving entity shall become an OZ Subsidiary upon consummation of such merger or consolidation, in the case of clauses (x) and (y) unless a Credit Party is also a party to such transaction, in which case clause (i) shall apply, and (iii) such asset acquisitions and other transactions effected by such merger or consolidation are otherwise permitted under the Credit Documents without giving effect to this clause (fNurtec ODT and/or Zavegepant);
(giii) sales, leases, subleases, licenses, sublicenses, exchanges, transfers or Permitted Acquisitions and other dispositions of assets that do not constitute Asset SalesPermitted Investments;
(hiv) Asset Sales (other than a sale of all or substantially all assets of royalty interests under the Credit Parties and the OZ Subsidiaries, taken as a whole) so long as (i) no Event of Default has occurred and is continuing, or would result therefrom, determined RPI Agreement as of the date that the definitive agreement for such Asset Sale is entered into, (ii) the Borrowers are in pro forma compliance with the financial covenants set forth in Section 6.10 as of the last day of the Fiscal Quarter most recently ended prior to such date for which financial statements have been delivered pursuant to Section 5.01 or 3.01, (iii) the consideration received for such sale of assets shall be in an amount equal to the fair market value thereof (determined in good faith by any Borrower), and (iv) at least 75% of such consideration is paid in Cash and Cash Equivalents, provided that the following shall be deemed to be Cash: (x) any liabilities that are assumed or paid by the transferee with respect to the applicable Asset Sale, (y) any securities received by the Credit Parties or any OZ Subsidiary from such transferee that are converted by a Credit Party or OZ Subsidiary into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents so received) within 180 days following the closing of the applicable Asset Sale, and (z) any Designated Non-Cash Consideration received by the Credit Parties or the OZ Subsidiaries in respect of such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this Section 6.05(h) that is at that time outstanding, not in excess of $5,000,000 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 on the date a legally binding commitment for such Asset Sale (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes in valueClosing Date;
(iv) any OZ Subsidiary that is not a Credit Party may dissolveAsset Sales of inventory and immaterial assets in the ordinary course of business;
(vi) Asset Sales of obsolete or worn out, liquidate retired or wind up its affairs at any timesurplus property, and (ii) any Credit Party and any OZ Subsidiary may surrender whether now owned or fail to maintain its rights, franchises, licenses and permits material to its business, provided thathereafter acquired, in the cases ordinary course of clauses (i) and (ii), such dissolution, liquidation, winding up, surrender or failure, as applicable, would not reasonably be expected to have a Material Adverse Effectbusiness;
(jvii) surrender or waiver of contractual rights and settlement or waiver of contractual or litigation claims in the ordinary course of business; CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [Reserved***]; and
. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION (kviii) any Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary may convey, sell, lease or license, exchange, transfer or otherwise dispose of any of its assets Asset Sales to the extent constituting realization of Liens permitted under Section 6.02(y), (z) or (bb); provided, that any such transactions from such Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary to any Credit Party Borrowers or any Non-SPVS shall not be made on terms that are substantially less favorable to such Credit Party or such Non-SPVS, as the case may be, than those that might be obtained in a comparable arms-length transaction at the time from a Person who is not an Affiliate of such Credit Party or Non-SPVS. It is understood and agreed that this Section 6.05 shall not prohibit any change in ownership of a Credit Party (other than any Credit Party that is also an OZ Guarantor Subsidiary) that does not cause a Change of Control as long as such Person or the surviving or acquiring Person remains (or becomes) a Credit Party. Notwithstanding anything to the contrary in this Agreement, this Section 6.05 shall not prohibit a Credit Party or any OZ Subsidiary from changing its jurisdiction of organization (so long as such change results in such Person being organized and existing under the laws of the United States or any state thereof or the District of Columbia), its organizational name, its identity or organizational structure, its type or form, or from changing its Federal Taxpayer Identification Number or state organizational identification number.;
Appears in 1 contract
Sources: Financing Agreement (Biohaven Pharmaceutical Holding Co Ltd.)
Fundamental Changes; Disposition of Assets. No Credit Loan Party shall, nor shall it permit any OZ Subsidiary of its Subsidiaries (excluding the Excluded Entities) to, consummate enter into any transaction of merger or consolidation, or liquidate, wind-up wind up, or dissolve itself (or suffer any liquidation or dissolution), or consummate any Division, or convey, sell, lease, or sub-lease (as lessor or licensesublessor), exchange, transfer transfer, or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets assets, or property of any kind whatsoever (including, for the avoidance of doubt, any Asset Sale) outside of the ordinary course of businesswhether by Division or otherwise), whether real, personal personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased acquired (whether acquired by purchase or licensedotherwise), except:
(a) (i) any Credit Non-ABL Subsidiary that is not a Loan Party may be merged with or into another Credit Partyany Non-ABL Loan Party (other than Global Parent) or Non-ABL Subsidiary, or be liquidated, wound up, or dissolved so long as all the assets of such liquidating, wound up or dissolveddissolved entity are transferred to a Loan Party (other than Global Parent) or a Subsidiary that is not liquidating, winding up or dissolving, or all or any part of its business, property property, or assets may be conveyed, sold, leased, transferred transferred, or otherwise disposed of, in one transaction or a series of transactions, to any Loan Party (other than Global Parent) or Subsidiary; provided, that in the case of such a Credit merger with a Non-ABL Loan Party;
, the Non-ABL Loan Party shall be the continuing or surviving Person, (bii) any Credit Party and any OZ ABL Subsidiary may convey, transfer or otherwise dispose of Equity Interests in the Issuer delivered pursuant to the terms of restricted share units issued by such Credit Party or OZ Subsidiary;
(c) any Credit that is not a Loan Party may be mergedmerged with or into any ABL Loan Party (other than Lead Borrower) or ABL Subsidiary, or be liquidated, wound up, dissolvedor dissolved so long as all the assets of such liquidating, wound up or consolidated with dissolved entity are transferred to an ABL Loan Party (other than Lead Borrower) or intoABL Subsidiary that is not liquidating, winding up or dissolving, or all or any part of its business, property property, or assets may be conveyed, sold, leased, transferred, or otherwise disposed of, in one transaction or a series of transactions, to any ABL Loan Party (other than Lead Borrower) or ABL Subsidiary; provided, that in the case of such a merger with an ABL Loan Party, such ABL Loan Party shall be the continuing or surviving Person, (iii) any Non-ABL Loan Party may be merged with or into any Non-ABL Loan Party (other than Global Parent), or be liquidated, wound up, or dissolved so long as all the assets of such liquidating, wound up or dissolved entity are transferred to a Loan Party (other than Global Parent) that is not liquidating, winding up or dissolving, or all or any part of its business, property, or assets may be conveyed, sold, leased, transferred, or otherwise disposed of, in one transaction or a series of transactions, to any Loan Party (other than Global Parent), and (iv) any ABL Loan Party may be merged with or into any other ABL Loan Party (other than Lead Borrower), or be liquidated, wound up, or dissolved so long as all the assets of such liquidating, wound up or dissolved entity are transferred to an ABL Loan Party (other than Lead Borrower) that is not liquidating, winding up or dissolving, or all or any part of its business, property, or assets may be conveyed, sold, leased, transferred, or otherwise disposed of, in one transaction or a series of transactions, to any other Person (including the Issuer or any Subsidiary of the Issuer) except for any Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary or any OZ Subsidiary or Owned Entity thereof other than an OZ Fund; provided that such Credit ABL Loan Party is the surviving entity;
(d) any OZ Subsidiary that is not a Credit Party may be merged, wound up, dissolved, or consolidated with or into, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any other OZ Subsidiary that is not a Credit Party or any other Person or Subsidiary (other than a Credit PartyLead Borrower); provided that an OZ Subsidiary is the surviving entity or the surviving entity becomes an OZ Subsidiary (and if the transferring Subsidiary was a wholly-owned Subsidiary of a Credit Party, a wholly-owned Subsidiary of a Credit Party) upon consummation of such merger or consolidation; provided, further, that any Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary (or any OZ Subsidiary or Owned Entity thereof other than an OZ Fund) shall not be merged or consolidated with or into any Non-SPVS;,
(eb) any Credit Party can be merged, wound up, dissolved, or consolidated with or into, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any of Issuer, Och-Ziff Corp, Och-Ziff Holding, any New Advisor that is not a New Advisor Guarantor, or any New Advisor Subsidiary; provided that, in the case of a merger or consolidation of a Credit Party with or into any such Person, (i) such Credit Party is the surviving entity or (ii) the surviving Person or the acquiring Person agrees to assume, and expressly assumes, all of the obligations of such Credit Party hereunder and under the other Credit Documents pursuant to an agreement in form and substance reasonably satisfactory to the Requisite Lenders, and such surviving Person or acquiring Person shall be organized and existing under the laws of the United States or any state thereof or the District of Columbia;
(f) any Credit Party or any OZ Subsidiary may enter into mergers and consolidations solely to effect asset acquisitions; provided that (i) if any Credit Party is party to such transaction, (x) such Credit Party shall be the continuing or surviving entity or (y) the surviving Person or the acquiring Person shall agree to assume, and shall expressly assume, all of the obligations of such Credit Party hereunder and under the other Credit Documents pursuant to an agreement in form and substance reasonably satisfactory to the Requisite Lenders, and such surviving Person or acquiring Person shall be organized and existing under the laws of the United States or any state thereof or the District of Columbia, (ii) if any OZ Subsidiary is a party to such transaction, (x) such OZ Subsidiary shall be the continuing or surviving entity or (y) the surviving entity shall become an OZ Subsidiary upon consummation of such merger or consolidation, in the case of clauses (x) and (y) unless a Credit Party is also a party to such transaction, in which case clause (i) shall apply, and (iii) such asset acquisitions and other transactions effected by such merger or consolidation are otherwise permitted under the Credit Documents without giving effect to this clause (f);
(g) sales, leases, subleases, licenses, sublicenses, exchanges, transfers sales or other dispositions of assets that do not constitute Asset Sales;,
(hc) dispositions of equipment and other property in the ordinary course of business that is worn (other than normal “wear and tear”), damaged, obsolete or, in the judgment of a Loan Party, no longer useful or necessary in its business or that of any Subsidiary,
(d) to the extent constituting an Asset Sale, (i) the incurrence of Permitted Liens, (ii) the making of Restricted Junior Payments permitted pursuant to Section 6.05 and (iii) sale and lease back transactions permitted by Section 6.11,
(e) Asset Sales (other than a sale bulk sales of all or substantially all assets of the Credit Parties and the OZ SubsidiariesABL Priority Collateral); provided, taken as a wholethat (A) so long as (ix) no Event of Default has occurred and is continuingfor Asset Sales not constituting Refranchising Activity, or would result therefrom, determined as of the date that the definitive agreement for such Asset Sale is entered into, (ii) the Borrowers are in pro forma compliance with the financial covenants set forth in Section 6.10 as of the last day of the Fiscal Quarter most recently ended prior to such date for which financial statements have been delivered pursuant to Section 5.01 or 3.01, (iii) the consideration received for such sale of assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the Board of Lead Borrower or Global Parent), which consideration is received in an arm’s length transaction from a Person other than an Affiliate of a Loan Party (provided that Asset Sales as permitted by Section 6.12(e) may be consummated with an Affiliate of a Loan Party) or (y) solely to the extent such Asset Sale constitutes Refranchising Activity, the Net Proceeds (excluding any Borrowerroyalties paid to a Liberty Party in connection with the operation of a retail location) thereof shall not be less than five (5) times the net cash flow generated at the store(s) before allocating corporate overhead expenses for the four Fiscal Quarter period then ending, (B) no less than 75% thereof shall be paid in Cash, (C) no Default or Event of Default has occurred and is continuing or would result therefrom, (D) the Net Proceeds thereof shall be applied as required by Section 2.08(a) or 2.08(e), and (ivE) at least 75% of such consideration is paid in Cash and Cash Equivalents, provided that the following shall be deemed to be Cash: for Asset Sales (x) any liabilities that are assumed not constituting Refranchising Activity or paid by the transferee with respect to the applicable Asset Sale, (y) constituting sales of Real Property (other than Real Property owned by any securities received by Liberty Party as of the Credit Parties Closing Date, the sales of which shall not be subject to or otherwise impact the cap described in this clause (E)), the Net Proceeds thereof shall not exceed $5,000,000 in the aggregate,
(f) the Lead Borrower or any OZ Subsidiary from such transferee that are converted by a Credit Party thereof may make or OZ Subsidiary into Cash or Cash Equivalents own Permitted Investments,
(to the extent of the Cash or Cash Equivalents so receivedg) within 180 days following the closing of the applicable Asset Sale[reserved],
(h) sales, transfers, and (z) any Designated Non-Cash Consideration received other dispositions by the Credit Parties or the OZ Subsidiaries in respect of such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this Section 6.05(h) that is at that time outstanding, not in excess of $5,000,000 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 on the date a legally binding commitment for such Asset Sale (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes in value;
(i) any OZ ABL Subsidiary which is not a Loan Party to any other ABL Subsidiary that is not a Credit Loan Party may dissolve, liquidate or wind up its affairs at any time, and (ii) any Credit Non-ABL Subsidiary which is not a Loan Party to any other Subsidiary that is not a Loan Party (other than the Excluded Entities),
(i) dispositions of Cash or Cash Equivalents in the ordinary course of business,
(j) non-exclusive licenses of patents, trademarks, and other intellectual property rights granted by any OZ Subsidiary may surrender Loan Party or fail any of its Subsidiaries in the ordinary course of business and not interfering in any respect with the ordinary conduct of the business of such Loan Party or any such Subsidiary,
(k) the abandonment, cancellation, dedication to maintain its rights, franchises, licenses and permits the public domain or allowance to lapse of intellectual property of any Loan Party that is no longer material to that Loan Party’s business in that Loan Party’s reasonable business judgment,
(l) dispositions of any assets (including Capital Stock) (A) acquired in connection with any Permitted Acquisition or other Investment not prohibited hereunder, which assets are not used or useful to the core or principal business of the Lead Borrower and its businessSubsidiaries or (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition,
(m) to the extent constituting a disposition, the waiver of any payments due on or in respect of Indebtedness (other than payments due at the maturity thereof) owing to the Loan Parties by any other Persons,
(n) exclusive licenses granted to franchisees in the ordinary course and consistent with past practices,
(o) Divisions with the prior written consent of the Administrative Agent and Required Lenders; provided that, if any Borrower or Guarantor that is a limited liability company consummates a Division, each Division Successor shall be required to comply with the obligations set forth in Section 5.13 and the other further assurances obligations set forth in the cases of clauses (i) Loan Documents and (ii), such dissolution, liquidation, winding up, surrender become a Borrower or failureGuarantor, as applicable, would not reasonably be expected to have a Material Adverse Effect;
(j) [Reserved]; under this Agreement and the other Loan Documents, and
(kp) any Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary may conveythe sale by the Liberty Parties of Liberty Area Development Rights, sellLiberty Franchise Rights, lease or license, exchange, transfer or otherwise dispose of any of its and store locations (and customer lists and other assets to the extent constituting realization of Liens permitted under Section 6.02(yrelated thereto), (z) or (bb)in each case in the ordinary course of business and consistent with past practice; providedprovided that, that any such transactions from such Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary to any Credit Party or any Non-SPVS shall not be made on terms that are substantially less favorable to such Credit Party or such Non-SPVS, as the case may be, than those that might be obtained in a comparable arms-length transaction at the time from a Person who is not an Affiliate of such Credit Party or Non-SPVS. It is understood and agreed that this Section 6.05 shall not prohibit any change in ownership of a Credit Party (other than any Credit Party that is also an OZ Subsidiary) that does not cause a Change of Control as long as such Person or the surviving or acquiring Person remains (or becomes) a Credit Party. Notwithstanding notwithstanding anything to the contrary contained herein, in this Agreementno event shall (x) any Loan Party make any Asset Sale or other asset sale or disposition of assets that results in the transfer of ownership (directly or indirectly) of any Material Intellectual Property (except for non-exclusive licenses of patents, this Section 6.05 shall not prohibit a Credit trademarks, and other intellectual property rights granted by any Loan Party or any OZ Subsidiary from changing of its jurisdiction Subsidiaries in the ordinary course of organization business and not interfering in any respect with the ordinary conduct of the business of such Loan Party or any such Subsidiary) or any interest in any Franchise Agreement to any Person that is not a Loan Party or (so long as such change y) any ABL Loan Party make any Asset Sale or other asset sale or disposition of assets that results in such Person being organized the transfer of ownership (directly or indirectly) of any Material ABL IP Rights (except for non-exclusive licenses of patents, trademarks, and existing under other intellectual property rights granted by any ABL Loan Party or ABL Subsidiary in the laws ordinary course of business and not interfering in any respect with the ordinary conduct of the United States business of such ABL Loan Party or ABL Subsidiary) or any state thereof or the District of Columbia), its organizational name, its identity or organizational structure, its type or form, or from changing its Federal Taxpayer Identification Number or state organizational identification numberinterest in any Franchise Agreement to any Person that is not an ABL Loan Party.
Appears in 1 contract
Fundamental Changes; Disposition of Assets. No Credit Party shall, nor shall it permit any OZ Subsidiary to, consummate any merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever (including, for the avoidance of doubt, any Asset Sale) outside of the ordinary course of business), whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, except:
(a) any Credit Party may be merged with or into another Credit Party, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to a Credit Party;
(b) any Credit Party and any OZ Subsidiary may convey, transfer or otherwise dispose of Equity Interests in the Issuer delivered pursuant to the terms of restricted share units issued by such Credit Party or OZ Subsidiary;
(c) any Credit Party may be merged, wound up, dissolved, merged or consolidated with or into, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to into any other Person (including the Issuer or any Subsidiary of the Issuer) except for any Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary or any OZ Subsidiary or Owned Entity thereof other than an OZ Fund); provided that such Credit Party is the surviving entity;
(d) any OZ Subsidiary that is not a Credit Party may be merged, wound up, dissolved, merged or consolidated with or into, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to into any other OZ Subsidiary that is not a Credit Party or any other Person or Subsidiary (other than a Credit Party); provided that an OZ Subsidiary is the surviving entity or the surviving entity becomes an OZ Subsidiary (and if the transferring Subsidiary was a wholly-owned Subsidiary of a Credit Party, a wholly-owned Subsidiary of a Credit Party) upon consummation of such merger or consolidation; provided, further, that any Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary (or any OZ Subsidiary or Owned Entity thereof other than an OZ Fund) shall not be merged or consolidated with or into any Non-SPVS;
(e) any Credit Party can be merged, wound up, dissolved, merged or consolidated with or into, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to into any of Issuer, Och-Ziff Corp, Och-Ziff Holding, any New Advisor that is not a New Advisor Guarantor, Guarantor or any New Advisor Subsidiary; provided that, in the case of a merger or consolidation of a Credit Party with or into any such Person, (i) such Credit Party is the surviving entity or (ii) the surviving Person or the acquiring Person agrees to assume, and expressly assumes, all of the obligations of such Credit Party hereunder and under the other Credit Documents pursuant to an agreement in form and substance reasonably satisfactory to the Requisite Lenders, and such surviving Person or acquiring Person shall be organized and existing under the laws of the United States or any state thereof or the District of Columbia;
(f) any Credit Party or any OZ Subsidiary may enter into mergers and consolidations solely to effect asset acquisitions; provided that (i) if any Credit Party is party to such transaction, (x) such Credit Party shall be the continuing or surviving entity or (y) the surviving Person or the acquiring Person shall agree to assume, and shall expressly assume, all of the obligations of such Credit Party hereunder and under the other Credit Documents pursuant to an agreement in form and substance reasonably satisfactory to the Requisite Lenders, and such surviving Person or acquiring Person shall be organized and existing under the laws of the United States or any state thereof or the District of Columbia, (ii) if any OZ Subsidiary is a party to such transaction, (x) such OZ Subsidiary shall be the continuing or surviving entity or (y) the surviving entity shall become an OZ Subsidiary upon consummation of such merger or consolidation, in the case of clauses (x) and (y) unless a Credit Party is also a party to such transaction, in which case clause (i) shall apply, and (iii) such asset acquisitions and other transactions effected by such merger or consolidation are otherwise permitted under the Credit Documents without giving effect to this clause (f);
(g) sales, leases, subleases, licenses, sublicenses, exchanges, transfers or other dispositions of assets that do not constitute Asset Sales;
(h) Asset Sales (other than a sale of all or substantially all assets of the Credit Parties and the OZ SubsidiariesSales, taken as a whole) so long as (i) no Event of Default has occurred and is continuingas, or would result therefrom, determined as of the date that the definitive agreement for immediately prior to such Asset Sale is entered into, (ii) the Borrowers are in pro forma compliance with the financial covenants set forth in Section 6.10 as of the last day of the Fiscal Quarter most recently ended prior and after giving effect to such date for which financial statements have been delivered pursuant to Section 5.01 or 3.01, (iii) the consideration received for such sale of assets shall be in an amount equal to the fair market value thereof (determined in good faith by any Borrower), and (iv) at least 75% of such consideration is paid in Cash and Cash Equivalents, provided that the following shall be deemed to be Cash: (x) any liabilities that are assumed or paid by the transferee with respect to the applicable Asset Sale, (y) any securities received by the Credit Parties or any OZ Subsidiary from such transferee that are converted by a Credit Party or OZ Subsidiary into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents so received) within 180 days following the closing of the applicable Asset Sale, and (z) any Designated Non-Cash Consideration received by the Credit Parties or the OZ Subsidiaries in respect of such Asset Sale having an aggregate fair market valueon a Pro Forma Basis, taken together with all other Designated Non-Cash Consideration received pursuant the Economic Income Leverage Ratio does not exceed 4.00 to this Section 6.05(h) that is at that time outstanding, not in excess of $5,000,000 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 on the date a legally binding commitment for such Asset Sale (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes in value1.00;
(i) any OZ Subsidiary that is not a Credit Party may dissolve, liquidate or wind up its affairs at any time, and (ii) any Credit Party and any OZ Subsidiary may surrender or fail to maintain its rights, franchises, licenses and permits material to its business, time provided that, in the cases of clauses (i) and (ii), that such dissolution, liquidation, liquidation or winding up, surrender or failure, as applicable, would not reasonably be expected to have a Material Adverse Effect;
(j) [Reserved]sales, leases, subleases, licenses, sublicenses, exchanges, transfers, or other dispositions of assets constituting aircraft, engines, parts, and accessories, documents and other assets related thereto, whether or not in the ordinary course of business; and
(k) any Qualifying Risk Retention Subsidiary Credit Party or Alternate Investment OZ Subsidiary may convey, make an asset sale or otherwise sell, lease or lease, sublease, license, sublicenses, exchange, transfer or otherwise dispose of any of its assets asset to the extent constituting realization of Liens it constitutes Restricted Payments permitted under Section 6.02(y), 6.03 (zother than under Section 6.03(b)(iii) or (bbSection 6.03(j); provided, that any such transactions from such Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary to any Credit Party or any Non-SPVS shall not be made on terms that are substantially less favorable to such Credit Party or such Non-SPVS, as the case may be, than those that might be obtained in a comparable arms-length transaction at the time from a Person who is not an Affiliate of such Credit Party or Non-SPVS). It is understood and agreed that this Section 6.05 shall not prohibit any change in ownership of a Credit Party (other than any Credit Party that is also an OZ Subsidiary) that does not cause a Change of Control as long as such Person or the surviving or acquiring Person remains (or becomes) a Credit Party. Notwithstanding anything to the contrary in this Agreement, this Section 6.05 shall not prohibit a Credit Party or any OZ Subsidiary from changing its jurisdiction of organization (so long as such change results in such Person being organized and existing under the laws of the United States or any state thereof or the District of Columbia), its organizational name, its identity or organizational structure, its type or form, or from changing its Federal Taxpayer Identification Number or state organizational identification number.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Och-Ziff Capital Management Group LLC)
Fundamental Changes; Disposition of Assets. No Credit Party Borrower shall, nor shall it permit any OZ Subsidiary of its Restricted Subsidiaries to, consummate enter into any transaction of merger or consolidation, or liquidate, wind-up windup or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or licensesublease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever (including, for the avoidance of doubt, any Asset Sale) outside of the ordinary course of businesswhatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensedacquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Consolidated Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or Capital Stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
: (ack) (i) any Credit Party may be merged with or into another any other Credit Party, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to a another Credit Party;
; provided, in the case of such a merger (b1) involving a Borrower, a Borrower shall be the continuing or surviving Person and (2) the continuing or surviving Person shall be organized under the laws of a state of the United States and (ii) any Credit Party and any OZ Restricted Subsidiary may convey, transfer or otherwise dispose of Equity Interests in the Issuer delivered pursuant to the terms of restricted share units issued by such Credit Party or OZ Subsidiary;
(c) any that is not a Credit Party may be mergedmerged with or into any other Restricted Subsidiary that is not a Credit Party, or be liquidated, wound up, up or dissolved, or consolidated with or into, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed DOC ID - 36220401.1 of, in one transaction or a series of transactions, to any other Person (including the Issuer or any Subsidiary of the Issuer) except for any Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary or any OZ Subsidiary or Owned Entity thereof other than an OZ Fund; provided that such a Credit Party is the surviving entity;
(d) any OZ or another Restricted Subsidiary that is not a Credit Party, in each case, to the extent the Borrower Representative believes such action is in such entities’ best interest and is not disadvantageous to the Lenders;
(i) any Restricted Subsidiary may dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any Borrower or to another Restricted Subsidiary; provided that a Credit Party may be merged, wound up, dissolved, make such disposition only to a Borrower or consolidated with or into, or all or another Credit Party and (ii) any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any other OZ Restricted Subsidiary that which is not a Credit Party or any other Person or Subsidiary (other than a Credit Party); provided that an OZ Subsidiary is the surviving entity or the surviving entity becomes an OZ Subsidiary (and if the transferring Subsidiary was a wholly-owned Subsidiary may dispose of a Credit Party, a wholly-owned Subsidiary of a Credit Party) upon consummation of such merger or consolidation; provided, further, that any Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary (or any OZ Subsidiary or Owned Entity thereof other than an OZ Fund) shall not be merged or consolidated with or into any Non-SPVS;
(e) any Credit Party can be merged, wound up, dissolved, or consolidated with or into, or all or any part of substantially all its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any of Issuer, Och-Ziff Corp, Och-Ziff Holding, any New Advisor that is not a New Advisor Guarantor, Borrower or any New Advisor another Restricted Subsidiary; provided that, in the case of a merger or consolidation of a Credit Party with or into any such Person, (i) such Credit Party is the surviving entity or (ii) the surviving Person or the acquiring Person agrees to assume, and expressly assumes, all of the obligations of such Credit Party hereunder and under the other Credit Documents pursuant to an agreement in form and substance reasonably satisfactory to the Requisite Lenders, and such surviving Person or acquiring Person shall be organized and existing under the laws of the United States or any state thereof or the District of Columbia;
(f) any Credit Party or any OZ Subsidiary may enter into mergers and consolidations solely to effect asset acquisitions; provided that (i) if any Credit Party is party to such transaction, (x) such Credit Party shall be the continuing or surviving entity or (y) the surviving Person or the acquiring Person shall agree to assume, and shall expressly assume, all of the obligations of such Credit Party hereunder and under the other Credit Documents pursuant to an agreement in form and substance reasonably satisfactory to the Requisite Lenders, and such surviving Person or acquiring Person shall be organized and existing under the laws of the United States or any state thereof or the District of Columbia, (ii) if any OZ Subsidiary is a party to such transaction, (x) such OZ Subsidiary shall be the continuing or surviving entity or (y) the surviving entity shall become an OZ Subsidiary upon consummation of such merger or consolidation, in the case of clauses (x) and (y) unless a Credit Party is also a party to such transaction, in which case clause (i) shall apply, and (iii) such asset acquisitions and other transactions effected by such merger or consolidation are otherwise permitted under the Credit Documents without giving effect to this clause (f);
(gcm) sales, leases, subleases, licenses, sublicenses, exchanges, transfers licenses or other dispositions of assets that do not constitute Asset Sales;
(h) Asset Sales (other than a sale of all or substantially all assets of the Credit Parties and the OZ Subsidiaries, taken as a whole) so long as (i) no Event of Default has occurred and is continuing, or would result therefrom, determined as of the date that the definitive agreement for such Asset Sale is entered into, (ii) the Borrowers are in pro forma compliance with the financial covenants set forth in Section 6.10 as of the last day of the Fiscal Quarter most recently ended prior to such date for which financial statements have been delivered pursuant to Section 5.01 or 3.01, (iii) the consideration received for such sale of assets shall be in an amount equal to the fair market value thereof (determined in good faith by any Borrower), and (iv) at least 75% of such consideration is paid in Cash and Cash Equivalents, provided that the following shall be deemed to be Cash: (x) any liabilities that are assumed or paid by the transferee with respect to the applicable Asset Sale, (y) any securities received by the Credit Parties or any OZ Subsidiary from such transferee that are converted by a Credit Party or OZ Subsidiary into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents so received) within 180 days following the closing of the applicable Asset Sale, and (z) any Designated Non-Cash Consideration received by the Credit Parties or the OZ Subsidiaries in respect of such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this Section 6.05(h) that is at that time outstanding, not in excess of $5,000,000 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 on the date a legally binding commitment for such Asset Sale (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes in value;
(i) any OZ Subsidiary that is not a Credit Party may dissolve, liquidate or wind up its affairs at any time, and (ii) any Credit Party and any OZ Subsidiary may surrender or fail to maintain its rights, franchises, licenses and permits material to its business, provided that, in the cases of clauses (i) and through (ii), such dissolution, liquidation, winding up, surrender or failure, as applicable, would not reasonably be expected to have a Material Adverse Effect;
(jvi) [Reserved]; and
(k) any Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary may convey, sell, lease or license, exchange, transfer or otherwise dispose of any of its assets to the extent constituting realization of Liens permitted under Section 6.02(y), (z) or (bb); provided, that any such transactions from such Qualifying Risk Retention Subsidiary or Alternate Investment Subsidiary to any Credit Party or any Non-SPVS shall not be made on terms that are substantially less favorable to such Credit Party or such Non-SPVS, as the case may be, than those that might be obtained in a comparable arms-length transaction at the time from a Person who is not an Affiliate of such Credit Party or Non-SPVS. It is understood and agreed that this Section 6.05 shall not prohibit any change in ownership of a Credit Party (other than any Credit Party that is also an OZ Subsidiary) that does not cause a Change of Control as long as such Person or the surviving or acquiring Person remains (or becomes) a Credit Party. Notwithstanding anything to the contrary in this Agreement, this Section 6.05 shall not prohibit a Credit Party or any OZ Subsidiary from changing its jurisdiction of organization (so long as such change results in such Person being organized and existing under the laws of the United States or any state thereof or the District definition of Columbia), its organizational name, its identity or organizational structure, its type or form, or from changing its Federal Taxpayer Identification Number or state organizational identification number.Asset Sale;
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Sources: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)