Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary), nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions, except (in each case, whether effected pursuant to a Division or otherwise): (a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible or surplus equipment or property in the ordinary course of business, (b) sales, transfers and dispositions to the Borrower or any Restricted Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Loan Party shall be made in compliance with Section 6.09, (c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice, (d) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04, (e) sale and leaseback transactions permitted by Section 6.06, (f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary, (g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05, (h) exchanges of property for similar replacement property for fair value, (i) assets set forth on Schedule 6.05, (j) the sale or other disposition of Permitted Investments, (k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default, (l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice, (m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04, (n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind, (o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and (p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 3 contracts
Samples: First Lien Term Loan Credit Agreement (Select Medical Holdings Corp), First Lien Credit Agreement (Select Medical Holdings Corp), First Lien Credit Agreement (Select Medical Corp)
Asset Sales. The Parent Borrower will not, and will not permit any Restricted Subsidiary of the Subsidiaries to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Parent Borrower permit any Restricted Subsidiary of the Subsidiaries to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactionsSubsidiary, except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) salessales of inventory, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible used or surplus equipment or property and Permitted Investments in the ordinary course of business,;
(b) sales, transfers and dispositions to the Parent Borrower or any Restricted a Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Subsidiary Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,
(e) sale and leaseback transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,
(gd) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are soldSubsidiary) that are not permitted by any other paragraph clause of this Section 6.05,Section, provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this clause (c) shall not exceed $25,000,000 during any fiscal year of the Parent Borrower or $50,000,000 in the aggregate during the term of this Agreement;
(he) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing licenses and sublicenses of intellectual property rights, granted in the ordinary course of business and not interfering individually or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere aggregate in any material respect with the conduct of the business of the Parent Borrower or any of its Restricted and the Subsidiaries, ; and
(pf) trade-ins, trade-ups and other similar exchanges of equipment of the sale Parent Borrower and the Subsidiaries for other equipment to be used in the business of Equity Interests in joint ventures to the extent required by or Parent Borrower and the Subsidiaries made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. business; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs clause (b), (c), (f), (l), (n) and (p) above) shall be made for fair value and (other than those permitted by paragraphs clause (b), ) or (d), (h), (l), (n) and (pf) above) for consideration at least 7585% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration)which is cash.
Appears in 3 contracts
Samples: Credit Agreement (Knowles Electronics LLC), Credit Agreement (Knowles Electronics LLC), Credit Agreement (Knowles Electronics LLC)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) (i) sales, transfers and dispositions of (iA) inventory Inventory in the ordinary course of business and (B) used, obsolete, worn out or surplus Equipment or property in the ordinary course of business and (ii) usedsales, damagedtransfers, obsoletedispositions or exclusive long-term licenses of property to the extent that (A) such property is concurrently exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such sales, worn outtransfers, negligible dispositions or surplus equipment or property in licenses are promptly applied to the ordinary course purchase price of business,such replacement property;
(b) sales, transfers and dispositions of assets to the Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Restricted Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) Accounts in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment Permitted Investments and other investments permitted by clauses (b), (h), (li) and (nk) of Section 6.04,;
(e) sale Sale and leaseback transactions Leaseback Transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,;
(g) sales, transfers and other dispositions consisting of divestitures required by applicable law or any Governmental Authority or other regulatory authority; and
(h) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,
Section, provided that the aggregate book value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (h) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of during any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business fiscal year of the Borrower or any shall not exceed 10.0% of its Restricted Subsidiaries, and
Total Assets as of the most recently ended fiscal year of the Borrower (p) the sale of Equity Interests in joint ventures determined by reference to the extent required by or made Borrower’s financial statements most recently delivered pursuant toto Section 5.01(a) or, customary buy/sell arrangements entered into if prior to the date of the delivery of the first financial statements to be delivered pursuant to such Section, the annual financial statements referred to in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. Section 3.04(a)); provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (pf) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 3 contracts
Samples: Credit Agreement (Akorn Inc), Loan Agreement (Akorn Inc), Credit Agreement (Akorn Inc)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any of its Restricted Subsidiary Subsidiaries to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the any Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the another Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and business, (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,business and (iii) Permitted Margin Stock;
(b) sales, transfers and dispositions to the any Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving any member of the Cott Mexican Group or a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,6.10 and 6.04;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment investments permitted by clauses (bg), (hi), (lj), (k) and (nt) of Section 6.04,;
(e) (i) sale and leaseback transactions permitted by Section 6.06,6.06(i) and (ii) sale and leaseback transactions permitted by Section 6.06(ii);
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the any Borrower or any Restricted Subsidiary,;
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,
Section, provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in the United States, the United Kingdom or Canada in reliance upon this paragraph (hg) exchanges shall not exceed (i) $5,000,000 during any fiscal year of property for similar replacement property for fair value,the Company and or (ii) $20,000,000 during the term of this Agreement;
(i) assets set forth on Schedule 6.05,
licenses of Intellectual Property and (jii) sales, transfers and other dispositions to Private Brand Customers of trademarks, formulae and other Intellectual Property that are established or developed in connection with and/or for the sale benefit of Private Brand Customers, in each case that are in furtherance of, or integral to, other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure business transactions entered into by the Borrower Company or any a Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,business;
(mi) the conveyance, sale, lease, conveyanceassignment, disposition transfer or other transfer disposition of (a) the Equity Interests ofvending machines, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary normal course of business that do not interfere in any material respect or as may be reasonably required by contract with the business customer of the Borrower or any of Company and its Restricted Subsidiaries, and
(p) in connection with, or to promote, sales of inventory or at the sale end of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).a relationship with a customer;
Appears in 3 contracts
Samples: Credit Agreement (Cott Corp /Cn/), Credit Agreement (Cott Corp /Cn/), Credit Agreement (Cott Corp /Cn/)
Asset Sales. The Neither Holdings nor the Borrower will, nor will not, and will not they permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions to the Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (bii), (hviii), (lxii) and (nxiv) of Section 6.04,;
(e) sale and leaseback transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,;
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,, provided that the aggregate fair value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (g) shall not exceed $200,000,000 during the term of this Agreement (excluding any single transaction or series of related transactions that involves assets having a Fair Market Value of less than $2,500,000);
(h) exchanges of property for similar replacement property for fair value,; and
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. ; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (pf) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (ph) above) for at least 75% cash consideration, ; plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 35,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 3 contracts
Samples: Credit Agreement (Select Medical Corp), Credit Agreement (Select Medical Corp), Credit Agreement (Select Medical Corp)
Asset Sales. The Borrower No Loan Party will not, and will not permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions to of accounts receivable in connection with the Borrower compromise, settlement or any Restricted Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Loan Party shall be made in compliance with Section 6.09,collection thereof;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,
(d) sales, transfers Permitted Investments and dispositions of property to the extent such property constitutes an investment other investments permitted by clauses (b), (h), (li) and (nk) of Section 6.04,;
(ed) sale and leaseback transactions permitted by Section 6.06,;
(fe) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,; and
(gf) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,
(h) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) in which case the sale or other disposition of Permitted Investments,
(k) Administrative Agent shall release the sale or disposition of any assets or property received as a result of a foreclosure security interests created by the Borrower Collateral Documents in such assets); provided that the aggregate fair market value of all assets sold, transferred or any Restricted Subsidiary with respect to any secured Investment or other transfer otherwise disposed of title with respect to any secured Investment in default,
reliance upon this paragraph (lf) shall not, during the licensing term of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the salethis Agreement, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business cumulatively exceed 5% of the Borrower or any total assets of its Restricted Subsidiaries, and
(p) the sale Parent as of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in time of the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. most recent disposition; further provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (pf) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 2 contracts
Samples: Credit Agreement (Lapeyre James M Jr), Credit Agreement (Lapeyre James M Jr)
Asset Sales. The Neither Holdings nor the Parent Borrower will, nor will not, and will not they permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will Holdings and the Parent Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactionsSubsidiary, except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) salessales of inventory, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible used or surplus equipment or property and Permitted Investments, in each case in the ordinary course of business,;
(b) sales, transfers and dispositions disposals of inventory pursuant to promotional or similar activities in the Borrower or any Restricted Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Loan Party shall be made in compliance with Section 6.09,ordinary course of business;
(c) sales, transfers and dispositions of products, services to the Parent Borrower or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,Subsidiary;
(d) sales, transfers and dispositions of interests in real property (including leasehold interests) in exchange for consideration that constitutes interests in real property (including leasehold interests) to the extent that any such property constitutes an investment permitted by clauses (b), (h), (l) and (n) transfer or disposition qualifies as a “like-kind” exchange under Section 1031 of Section 6.04,the Code;
(e) sale and leaseback transactions permitted by sales of fixed or capital assets pursuant to Section 6.06,6.06(a); and
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are soldSubsidiary) that are not permitted by any other paragraph clause of this Section 6.05,
(h) exchanges of property for similar replacement property for fair value,
Section, provided that (i) assets set forth Holdings and the Parent Borrower will be in compliance on Schedule 6.05,
(j) a pro forma basis with the sale or other disposition covenants contained in Sections 6.09, 6.10 and 6.11, recomputed as of Permitted Investments,
(k) the sale last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available as if such sale, transfer or disposition of any assets and all other sales, transfers or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment dispositions made in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to reliance on this clause (sf) had occurred on the first day of Section 6.04,
each relevant period for testing such compliance and (nii) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties no Default shall have occurred and sent forth in joint venture agreements. be continuing; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs clauses (b), (c), (f), (l), (n) and (pc) above) shall be made for fair value and (other than those permitted value. This Section shall not be construed to prohibit transfers of cash by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower Holdings or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration)that are not prohibited by any other provision of this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (J C Penney Co Inc), Credit Agreement (J C Penney Co Inc)
Asset Sales. The Borrower Holdings will not, and will not permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower Holdings or a Restricted Subsidiary), nor will the Borrower Holdings permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower Holdings or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions, except (in each case, whether effected pursuant to a Division or otherwise):
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible or surplus equipment or property in the ordinary course of business,
(b) sales, transfers and dispositions to the Borrower Holdings or any Restricted Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Loan Party shall be made in compliance with Section 6.09,
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,
(e) sale and leaseback transactions permitted by Section 6.06,
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower Holdings or any Restricted Subsidiary,
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,
(h) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower Holdings or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower Holdings or any of its Restricted Subsidiaries, and,
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. , and
(q) sales, transfers and dispositions of non-core assets acquired after the Closing Date in a Permitted Acquisition or similar Investment so long as the assets disposed of constituted less than 25% of the aggregate Fair Market Value of all assets acquired in such Permitted Acquisition or Investment; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n), (p) and (pr) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n), (p) and (pr) above) for at least 75% cash consideration, consideration plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 50,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower Holdings or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 2 contracts
Samples: Credit Agreement (Concentra Group Holdings Parent, Inc.), Credit Agreement (Select Medical Holdings Corp)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any of its Restricted Subsidiary Subsidiaries to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the any Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the another Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and business, (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,business and (iii) Permitted Margin Stock;
(b) sales, transfers and dispositions to the any Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving any member of the Cott Mexican Group or a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,6.10 and 6.04;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment investments permitted by clauses (bg), (hi), (lj) and (nk) of Section 6.04,;
(e) (i) sale and leaseback transactions permitted by Section 6.06,6.06(i) and (ii) sale and leaseback transactions permitted by Section 6.06(ii);
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the any Borrower or any Restricted Subsidiary,;
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,Section, provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (g) shall not exceed (i) $40,000,000 during any fiscal year of the Company and or (ii) $100,000,000 during the term of this Agreement;
(h) exchanges licenses of property for similar replacement property for fair value,Intellectual Property that are in furtherance of, or integral to, other business transactions entered into by the Company or a Restricted Subsidiary in the ordinary course of business;
(i) assets set forth on Schedule 6.05,the conveyance, sale, lease, assignment, transfer or other disposition of vending machines, in the normal course of business or as may be reasonably required by contract with the customer of the Company and its Restricted Subsidiaries, in connection with, or to promote, sales of inventory or at the end of a relationship with a customer;
(j) the sale or other disposition of Permitted Investments,Restricted Payments permitted by Section 6.09;
(k) the sale or disposition dispositions of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property cash and Permitted Investments in the ordinary course of business or in accordance connection with industry practice,a transaction otherwise permitted under this Agreement;
(l) dispositions of cash and property permitted by Section 6.04(q);
(m) the sale, lease, conveyance, disposition or other transfer issuances of (a) the additional Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted SubsidiarySubsidiary created after the Effective Date in connection with a joint venture permitted by Section 6.04, provided that (A) made pursuant such Equity Interests are issued substantially contemporaneously with the formation of such joint venture and (B) such Equity Interests are issued to clause (sthe holder(s) of Section 6.04,the minority interest in such joint venture; and
(n) surrender or waiver of contract rights or the settlementconveyances, release or surrender of contractsales, tort or leases, assignments, transfers and other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business dispositions from members of the Borrower or any Cott Mexico Group that are not Loan Parties to other members of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. Cott Mexico Group that are not Loan Parties provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (a), (b) (to the extent the applicable transaction is solely among Loan Parties), (c), (e)(ii), (f), (h), (i), (j), (k), (l), (nm) and (pn) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration; provided, plus (for all such salesfurther, transfersthat nothing in this Section 6.05 shall be taken as permitting the UK Borrower to sell, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph factor, assign, transfer or otherwise deal with (a) above, accounts receivable received any of its Accounts other than by collecting the same in the ordinary course and any property received as provided in exchange for used, obsolete, worn out the UK Security Agreement or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition as specifically permitted by the Borrower UK Security Trustee or (b) any of its Restricted Subsidiaries shall be deemed to constitute cash consideration)Eligible Equipment other than as specifically permitted by the UK Security Trustee in accordance with the UK Security Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Cott Corp /Cn/), Credit Agreement (Cott Corp /Cn/)
Asset Sales. The Neither Holdings nor the Borrower will, nor will not, and will not they permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions to the Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (bii), (hviii), (lxii) and (nxiv) of Section 6.04,;
(e) sale and leaseback transactions permitted by Section 6.06,, including, without limitation, the sale and leaseback of the properties listed on Schedule 6.06 and the Specified Property;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,;
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,, provided that the aggregate fair value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (g) shall not exceed $10,000,000 during the term of this Agreement; and
(h) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. ; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (pf) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (ph) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 2,500,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 2 contracts
Samples: Credit Agreement (AGA Medical Holdings, Inc.), Credit Agreement (AGA Medical Holdings, Inc.)
Asset Sales. The Borrower will notMake any Asset Disposition, and will not permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose except:
(whether effected pursuant to a Division or otherwisea) Asset Dispositions of any asset, including any Equity Interest owned property by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary), nor will the Borrower permit or any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted to a Subsidiary in compliance with the ordinary course of business; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must either be the Borrower or a Guarantor;
(b) Asset Dispositions by the Borrower and its Wholly-Owned Subsidiaries to any Person that is not a Loan Party or a Subsidiary of any Loan Party not otherwise permitted under this Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions, except (in each case, whether effected pursuant to a Division or otherwise):
(a) sales, transfers and dispositions of ; provided that (i) inventory at the time of such Disposition, no Default or Event of Default shall exist or would result from such Disposition and (ii) the aggregate book value of all property Disposed of in reliance on this clause (b) in any fiscal year shall not exceed $1,000,000.00 (or the equivalent in any other currency);
(c) Asset Dispositions permitted by Section 6.03, Investments permitted by Section 6.05 and Restricted Payments permitted by Section 6.06;
(d) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the value of such property;
(iie) usedtransfers of property subject to any Event of Loss if the Net Proceeds of such event are applied in accordance with Section 2.07(c)(iii)(B);
(f) Asset Dispositions in the ordinary course of business consisting of the abandonment or termination of, damagedor the failure to renew, obsoleteintellectual property rights, worn outleases, negligible or surplus equipment or property licenses and other intangible assets which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Subsidiaries;
(g) Asset Dispositions of overdue accounts receivable arising in the ordinary course of business,
(b) sales, transfers and dispositions to the Borrower or any Restricted Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Loan Party shall be made in compliance with Section 6.09,
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) but only in connection with the compromise, settlement collection or collection thereof consistent with past practice,
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,
(e) sale and leaseback transactions permitted by Section 6.06,
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,compromise thereof;
(h) exchanges Asset Dispositions of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property Cash Equivalents and cash in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, business; and
(pi) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. any Asset Disposition involving Diamondback-Well Services LLC; provided that all sales, transfers, leases and other dispositions permitted hereby (other the book value of the Property Disposed of in such Asset Disposition is less than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration)5,000,000.
Appears in 2 contracts
Samples: Credit Agreement (Diamondback Energy Services, Inc.), Credit Agreement (Diamondback Energy Services, Inc.)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower Holdings permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory Inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment Equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions of assets to the Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) Accounts in the ordinary course of business in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes constituting an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,;
(e) sale Sale and leaseback transactions Leaseback Transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower Holdings or any Restricted Subsidiary,;
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph clause of this Section 6.05,Section; provided that both immediately before and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and the aggregate fair market value of all assets sold, transferred or otherwise disposed of since the Effective Date in reliance upon this clause (g) shall not exceed $25,000,000 in the aggregate; provided further that, so long as no Default or Event of Default has occurred and is continuing or after giving effect to such transaction, in addition to the foregoing, the Loan Parties and their Subsidiaries may make unlimited sales, transfers, leases or dispositions of assets so long as after giving effect to such disposition the Total Net Leverage Ratio, calculated on a pro forma basis, would not exceed 1.50:1.00;
(h) exchanges of property for similar replacement property for fair value,Restricted Payments permitted by Section 6.08, transactions permitted by Section 6.03 and Liens permitted by Section 6.02;
(i) assets set forth on Schedule 6.05,the non-exclusive licensing or sublicensing of Intellectual Property rights in the ordinary course of business;
(j) the sale abandonment or other disposition cancellation of Permitted Investments,intellectual property, in the reasonable judgment of the Borrower, that is no longer used or useful in any material respect in the business of Holdings and its Subsidiaries, taken as a whole;
(k) dispositions of investments in joint ventures to the sale extent required by, or disposition of any assets or property received as a result of a foreclosure by made pursuant to customary buy/sell arrangements between, the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment joint venture parties set forth in default,joint venture arrangements and similar binding arrangements;
(l) the licensing dispositions of intellectual property cash and cash equivalents in the ordinary course of business for consideration consisting of cash or in accordance with industry practice,cash equivalents;
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other litigation claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere business;
(n) sales of assets received by the Borrower or any Subsidiary Guarantor from Persons other than the Borrower or a Subsidiary Guarantor upon foreclosure on a Lien in any material respect with the business favor of the Borrower of such Subsidiary;
(o) dispositions of non-core, duplicative or unnecessary assets that were acquired in connection with a Permitted Acquisition; provided, that any such disposition shall be made or contractually committed to be made within 365 days of the date such assets were acquired by Borrower or any of its Restricted Subsidiaries, ; and
(p) the sale of Equity Interests in joint ventures to the extent required by constituting a sale, disposition or made transfer of assets, the sale, disposition or transfer of Accounts pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. to a Permitted Factoring Facility; provided that all sales, transfers, leases and other dispositions permitted hereby under clauses (a) through (g) above (other than those permitted by paragraphs clauses (b), (c), (f), (l), (n) and (pf) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Global Brass & Copper Holdings, Inc.), Term Loan Credit Agreement (Global Brass & Copper Holdings, Inc.)
Asset Sales. The Borrower None of the Company or any Subsidiary will not, and will not permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares and other than issuing Equity Interests to the Borrower Company or another Restricted Subsidiary in compliance with Section 6.046.04(d)) involving aggregate payments or consideration for assets having (each, a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions“Disposition”), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions Dispositions of (i) inventory in the ordinary course of business and inventory, (ii) used, damaged, obsolete, worn out, negligible damaged or surplus equipment or property and (iii) cash and Permitted Investments, in each case in the ordinary course of business,;
(b) sales, transfers and dispositions Dispositions to the Borrower Company or any Restricted a Subsidiary; provided that any such sales, transfers or dispositions Disposition involving a Non-Subsidiary that is not a Loan Party (i) shall be made in compliance with Sections 6.04 and 6.09 and (ii) shall not, in the case of any Disposition by any Loan Party to Foreign Subsidiaries in any fiscal year that are not made as Investments permitted by Section 6.09,6.04, involve assets having an aggregate fair market value for all such assets so Disposed in such fiscal year in excess of $10,000,000;
(c) sales, transfers and dispositions Dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof in the ordinary course of business consistent with past practice,practice and not as part of any accounts receivables financing transaction;
(d) sales, transfers and dispositions (i) Dispositions of property assets to the extent that such property Disposition constitutes an investment Investment referred to in and permitted by clauses Section 6.04 (bincluding the sale or issuance of Equity Interests of any Subsidiary in connection with the establishment of any Permitted Joint Venture, provided such sale or issuance is permitted by Section 6.04(s) or (u) (and, with respect to any sale or issuance of Equity Interests by a Loan Party, Section 6.04(d), (h), (l) and (nii) Dispositions of assets to the extent that such Disposition constitute a Restricted Payment referred to in and permitted by Section 6.04,6.08;
(e) sale and leaseback transactions Sale/Leaseback Transactions permitted by Section 6.06,;
(f) dispositions Licenses, leases or subleases entered into in the ordinary course of business, to the extent that they do not materially interfere with the business of the Company or any Subsidiary;
(g) Licenses or sublicenses of intellectual property in the ordinary course of business, to the extent that they do not materially interfere with the business of the Company or any Subsidiary;
(h) Dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of any of the Borrower Company or any Restricted Subsidiary,
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,
(h) exchanges of property for similar replacement property for fair value,;
(i) Dispositions of assets set forth (including as a result of like-kind exchanges) to the extent that (i) such assets are exchanged for credit (on Schedule 6.05,a fair market value basis) against the purchase price of similar or replacement assets or (ii) such asset is Disposed of for fair market value and the proceeds of such Disposition are promptly applied to the purchase price of similar or replacement assets;
(j) the sale or other disposition Dispositions of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by by, or made pursuant to, to customary buy/sell arrangements entered into in the ordinary course of business between between, the joint venture parties and sent set forth in joint venture agreements. arrangements;
(k) the abandonment, cancellation, non-renewal or discontinuance of use or maintenance of non-material intellectual property or rights relating thereto that the Company determines in its reasonable judgment to be desirable to the conduct of its business and not materially disadvantageous to the interests of the Lenders; and
(l) any other Disposition of assets (including Equity Interests); provided that all sales(i) if the total fair market value of the assets subject to any such Disposition or series of related Dispositions is in excess of $5,000,000, transfersit shall be for fair market value (or if not for fair market value, leases the shortfall is permitted as and other dispositions permitted hereby (other than those permitted by paragraphs (btreated as an Investment under Section 6.04), (c), (f), (l), (nii) and (p) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (of the total consideration for all any such sales, transfers, leases Disposition in excess of $5,000,000 received by the Company and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration its Subsidiaries is in the amount form of $20,000,000 cash or Permitted Investments, (it being understood iii) no Default or Event of Default then exists or would result from such Disposition (except if such Disposition is made pursuant to an agreement entered into at a time when no Default or Event of Default exists) and (iv) the requirements of Section 2.11(c), to the extent applicable, are complied with in connection therewith; provided, however, that for purposes of paragraph clause (aii) above, accounts receivable the following shall be deemed to be cash: (A) any liabilities (as shown on the Company’s or such Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Company or such Subsidiary (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee with respect to the applicable Disposition and for which the Company and its Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by the Company or such Subsidiary from such transferee that are converted by the Company or such Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash conversion) within 6 months 180 days following the closing of the applicable sale, transfer, lease or other disposition Disposition and (C) any Designated Non-Cash Consideration received by the Borrower Company or any of its Restricted Subsidiaries in such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (l) that is at that time outstanding, not to exceed the greater of (I) $75,000,000 and (II) 2.50% of Total Assets at the time of the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value). Notwithstanding the foregoing, other than Dispositions to the Company or any Subsidiary in compliance with Section 6.04, and other than directors’ qualifying shares and other nominal amounts of Equity Interests that are required to be held by other Persons under applicable Requirements of Law, no such Disposition of any Equity Interests in any Subsidiary shall be permitted unless (i) other than in connection with the establishment or formation of a Permitted Joint Venture, with respect to any wholly-owned Domestic Subsidiary, such Equity Interests constitute all of the Equity Interests in such Subsidiary held by the Borrower and the Subsidiaries and (ii) immediately after giving effect to such transaction, the Company and the Subsidiaries shall otherwise be deemed to constitute cash consideration)in compliance with Section 6.04.
Appears in 2 contracts
Samples: Credit Agreement (Minerals Technologies Inc), Credit Agreement (Minerals Technologies Inc)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose of (whether effected pursuant to including by a Division or otherwiseDivision) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the any Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the another Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory Inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment Equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions of assets to the any Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) Accounts in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment Permitted Investments and other investments permitted by clauses (b), (h), (li) and (nk) of Section 6.04,;
(e) sale Sale and leaseback transactions Leaseback Transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the any Borrower or any Restricted Subsidiary,;
(g) Specified Dispositions; and
(h) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph clause of this Section 6.05,
Section, provided that (i) the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this clause (h) exchanges shall not exceed $10,000,000 during any fiscal year of property for similar replacement property for fair value,
the Company and (i) assets set forth on Schedule 6.05,
(jii) the sale Borrowers shall deliver a Borrowing Base Certificate (giving pro forma effect to such sale, transfer or other disposition) in connection with any such sale, transfer or other disposition of Permitted Investments,
(k) the sale or disposition Borrowing Base assets with a fair market value in excess of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. $1,000,000; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (pf) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 2 contracts
Samples: Credit Agreement (CSS Industries Inc), Credit Agreement (CSS Industries Inc)
Asset Sales. The Borrower will not, and nor will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and business, (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,business or (iii) equipment or other property no longer used or useful to Borrower or any Subsidiary;
(b) sales, transfers and dispositions of assets to the Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Loan Party Subsidiary shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services accounts (excluding sales or accounts receivable (including at dispositions in a discountfactoring arrangement) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,Permitted Investments;
(e) sale and leaseback transactions permitted any sale, lease or transfer constituting an easement, license, zoning restriction, rights-of-way or similar encumbrance on real property imposed by Section 6.06,law or arising in the ordinary course of business that does not materially detract from the value of the affected property or interfere with the ordinary conduct of the business of the Borrower or any Subsidiary;
(f) the use or transfer of money or cash equivalents in a manner that is not prohibited by the terms of the Agreement or the other Loan Documents;
(g) the granting of Liens as permitted under Section 6.02;
(h) the sale or issuance of Equity Interests of Borrower to Holdco or any Subsidiary to Borrower;
(i) dispositions of assets acquired by Borrower and its Subsidiaries pursuant to a Permitted Acquisition consummated within 12 months of the date of the proposed disposition (the “Subject Permitted Acquisition”) so long as (i) the consideration received for the assets to be so disposed is at least equal to the fair market value thereof, (ii) the assets to be so disposed are not necessary or economically desirable in connection with the business of Borrower and its Subsidiaries, and (iii) the assets to be so disposed are readily identifiable as assets acquired pursuant to the Subject Permitted Acquisition;
(j) the dispositions of Equity Interests held in or for the benefit of retirement, pension and other benefit plans maintained by Borrower (including the Borrower’s Executive Supplemental Retirement Plan, Cash Balance Executive Supplemental Retirement Plan and Special Deferral Election Plan);
(k) sales or other transfers of assets between the Borrower and SJW Land Company at prices and on terms and conditions not less favorable to the Borrower than could be obtained on an arm’s-length basis from unrelated third parties;
(l) sales, transfers and dispositions permitted under Section 6.04 and Section 6.08;
(m) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,;
(gn) leases and subleases of real property in the ordinary course of business; and
(o) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other clause of this Section, provided that the aggregate book value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (o) (together with (i) the aggregate book value of all assets sold, transferred or otherwise disposed of by HoldCo that are not of the type that would be permitted to be sold, transferred or otherwise disposed of pursuant to any other clause of this Section 6.05,
and (h) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(jii) the sale aggregate book value of all assets sold, transferred or other disposition otherwise disposed of Permitted Investments,
(kin reliance on similar exceptions in SJWTX Credit Agreement) shall not exceed 10% of the sale or disposition book value of the total assets of Holdco and its Subsidiaries during any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business fiscal quarter of the Borrower or any 25% of the book value of Holdco’s and its Restricted Subsidiaries’ total assets from and after the Effective Date (measured, and
(p) in each case, as of the sale end of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. fiscal quarter then last ended); provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) above) shall be made for fair value and under this Section 6.05 (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (pf) above) shall be made for fair value and for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 2 contracts
Samples: Credit Agreement (SJW Group), Credit Agreement (SJW Group)
Asset Sales. The None of Holdings, the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower will, nor will not, and will not they permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower they permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactionsSubsidiary, except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers transfers, leases and other dispositions of (i) inventory in the ordinary course of business and (ii) usedinventory, damaged, obsolete, worn out, negligible used or surplus equipment or property other obsolete assets, Permitted Investments and Investments referred to in Section 6.04(h) in the ordinary course of business,;
(b) sales, transfers and dispositions to the Parent Borrower or any Restricted a Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Domestic Loan Party shall be made in compliance with Section 6.09,;
(c) (i) sales of accounts receivable and related assets pursuant to the Receivables Purchase Agreement, (ii) sales of accounts receivable and related assets by a Foreign Subsidiary pursuant to customary terms whereby recourse and exposure in respect thereof to any Foreign Subsidiary does not exceed at any time $50,000,000 and (iii) sales of accounts receivables and related assets pursuant to the Specified Vendor Receivables Financing.
(d) the creation of Liens permitted by Section 6.02 and dispositions as a result thereof;
(e) sales or transfers that are permitted sale and leaseback transactions pursuant to Section 6.06;
(f) sales and transfers that constitute part of an Acquisition Lease Financing;
(g) Restricted Payments permitted by Section 6.08;
(h) transfers and dispositions constituting investments permitted under Section 6.04;
(i) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,
(d) sales, transfers and other dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,identified on Schedule 6.05;
(e) sale and leaseback transactions permitted by Section 6.06,
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,
(gj) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are soldSubsidiary) that are not permitted by any other paragraph clause of this Section 6.05,
Section; provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this clause (hj) exchanges of property for similar replacement property for fair value,
shall not exceed (i) 15% of the aggregate fair market value of all assets set forth of the Parent Borrower (determined as of the end of its most recent fiscal year), including any Equity Interests owned by it, during any fiscal year of the Parent Borrower; provided that such amount shall be increased, in respect of the fiscal year ending on Schedule 6.05,
December 31, 2013, and each fiscal year thereafter by an amount equal to the total unused amount of such permitted sales, transfers and other dispositions for the immediately preceding fiscal year (jwithout giving effect to the amount of any unused permitted sales, transfers and other dispositions that were carried forward to such preceding fiscal year) and (ii) 35% of the sale or other disposition aggregate fair market value of Permitted Investments,all assets of the Parent Borrower as of the Closing Date, including any Equity Interests owned by it, during the term of this Agreement subsequent to the Closing Date; and
(k) sale of the sale Designated Business; provided that (i) at the time of and after giving effect to such sale, Holdings and the Parent Borrower shall be in pro forma compliance with the financial covenants set forth in Sections 6.12 and 6.13, (ii) at the time of and after giving effect to such sale, no Default or disposition Event of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
Default shall have occurred and be continuing and (liii) the licensing of intellectual property in the ordinary course of business or Net Proceeds thereof shall be used to prepay Term Loans in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. 2.11(c); provided that (x) all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs clause (b), (c), (f), (l), (n) and (p) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (ny) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted herebyby clauses (i), (j) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 and (it being understood that for purposes of paragraph (ak) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries above shall be deemed to constitute for at least 75% cash consideration).
Appears in 2 contracts
Samples: Incremental Facility Agreement (Trimas Corp), Credit Agreement (Trimas Corp)
Asset Sales. The Holdings and the Borrower will not, and will not permit any other Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any 92 asset, including any Equity Interest Interests owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower Holdings permit any of its Restricted Subsidiary Subsidiaries to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactionsInterests, except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and transfers, leases or other dispositions of (i) inventory in the ordinary course fiber optic cable capacity, sales of business inventory, and (ii) used, damaged, obsolete, worn out, negligible sales of used or surplus equipment or property and Cash Equivalent Investments, in each case in the ordinary course of business,;
(b) sales, transfers and dispositions to the Borrower or any Restricted a Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) issuances to the Borrower or any other Restricted Subsidiary of Equity Interests in any Restricted Subsidiary other than the Borrower;
(d) issuances to Holdings by the Borrower of Qualifying Equity Interests in the Borrower;
(e) Permitted Telecommunications Asset Dispositions;
(f) sales, transfers and dispositions of productsassets to the extent constituting Investments permitted under Section 6.04;
(g) Restricted Payments permitted under Section 6.07(a) and payments of principal and interest permitted under Section 6.07(b);
(h) the sale, services transfer or accounts receivable other dispositions required by Section 5.17 or 5.18;
(including at a discounti) any transfer of Receivables and Related Transferred Rights (each as defined in the Security Agreement attached hereto as Exhibit K) in connection with the compromise, settlement order to consummate a Permitted Receivables Transaction or collection thereof consistent with past practice,to transfer such assets pursuant to a factoring arrangement; and
(dj) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,
(e) sale and leaseback transactions permitted by Section 6.06,
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are soldTelecommunications Assets) that are not permitted by any other paragraph clause of this Section; provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this Section 6.05,
(h6.05(j) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of shall not exceed $25,000,000 during any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business fiscal year of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. Borrower; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (nunder Sections 6.05(e) and (p) above6.05(j) shall be made (x) for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (ny) and (p) above) for only if at least 75% of the consideration paid therefor is cash considerationor Cash Equivalent Investments (or, plus (for all if less than 75%, the remainder of such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount consideration consists of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash considerationTelecommunications Assets).
Appears in 2 contracts
Samples: Aircraft Dry Lease (Williams Companies Inc), Aircraft Dry Lease (Williams Companies Inc)
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) Dispose of any assetof its Property, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary), nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions, except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions sale of (i) inventory in the ordinary course of business;
(b) the sale of obsolete, worn-out or surplus assets (and the abandonment or cancellation of intellectual property) no longer used or usable in the business and of the Borrower or any of its Subsidiaries;
(c) sales of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) used, damaged, obsolete, worn out, negligible the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) licensing and cross-licensing arrangements involving any technology or surplus equipment other intellectual property of the Borrower or property any Subsidiary in the ordinary course of business,
(b) sales, transfers and dispositions to the Borrower or any Restricted Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Loan Party shall be made in compliance with Section 6.09,
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,;
(e) sale and leaseback transactions permitted by Section 6.06,dispositions of defaulted receivables or claims against customers, other industry partners or any other Person, including in connection with workouts or bankruptcy, insolvency or similar proceedings with respect thereto;
(f) dispositions resulting from of Property by the Borrower or any Subsidiary to the Borrower or to a direct or indirect wholly owned Subsidiary; provided that if the transferor of such Property is a Loan Party, the transferee thereof must be a Loan Party;
(g) dispositions permitted by Section 6.01, Section 6.03, Section 6.05 and Section 6.06 and dispositions in furtherance of the assignment contemplated by Section 10.06(g);
(h) any casualty or other insured damage tocondemnation event, or any taking under power of eminent domain or by condemnation or similar proceeding ofproceeding, any property or asset of provided that the Borrower or any Restricted Subsidiary,
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary proceeds thereof are sold) that are not permitted by any other paragraph of this applied pursuant to Section 6.05,
(h) exchanges of property for similar replacement property for fair value,2.07(c)(ii); and
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure dispositions by the Borrower and its Subsidiaries not otherwise permitted under this Section 6.04; provided that (i) at the time of such disposition, no Default shall exist or would result from such disposition, (ii) the aggregate book value of all property disposed of in reliance on this paragraph (h) in any Restricted Subsidiary fiscal year shall not exceed $5,000,000 and (iii) the Borrower shall have complied with the provisions of Section 2.07 with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration)Net Cash Proceeds therefrom.
Appears in 2 contracts
Samples: Credit Agreement (Quintana Energy Services Inc.), Credit Agreement (Quintana Energy Services Inc.)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower Borrowers permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the a Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory Inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment Equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions of assets to the any Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) Accounts in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment Permitted Investments and other investments permitted by clauses (b), (h), (li) and (nk) of Section 6.04,;
(e) sale Sale and leaseback transactions Leaseback Transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the any Borrower or any Restricted Subsidiary,;
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,Section, provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (g) shall not exceed $750,000 during any Fiscal Year of the Company; and
(h) exchanges sale of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the real estate and improvements located in Reynosa, Mexico; provided that the Net Proceeds of such sale or other disposition of Permitted Investments,
(k) shall be applied to the sale or disposition of any assets or property received Obligations as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment provided in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (sSection 2.11(c) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreementsthis Agreement. provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (nh) and (pi) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 2 contracts
Samples: Credit Agreement (Escalade Inc), Credit Agreement (Escalade Inc)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions, except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory Inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,, or of property no longer used or useful in the conduct of the business of the Subsidiaries;
(b) sales, leases, transfers and dispositions to the Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving to a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, leases, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment (i) investments permitted by clauses (ba), (h), (li), (j) and (np) of Section 6.04,, (ii) investments permitted by clause (b) of Section 6.04 by a Loan Party to another Loan Party and by a Subsidiary that is not a Loan Party to a Loan Party or any Subsidiary and (iii) other investments to the extent required by or made pursuant to customary buy/sell arrangements made in the ordinary course of business between the parties to agreements related thereto;
(e) sale Sale and leaseback Lease-Back transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower Holdings or any Restricted Subsidiary,Subsidiary (a “Recovery Event”);
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not otherwise permitted by any other paragraph of this Section 6.05,made for fair market value; provided that (i) in the case of any sale, transfer or disposition of assets that is not ABL Collateral, with respect to any such sale, transfer or disposition for a purchase price in excess of $10,000,000, Holdings or a Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided that, for purposes of determining what constitutes cash under this clause (i), (A) any liabilities (as shown on Holdings’ or such Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of Holdings or such Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable sale, transfer or disposition and for which Holdings and all of the Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by Holdings or such Subsidiary from such transferee that are converted by Holdings or such Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of the applicable sale, transfer or disposition and (C) during the term of this Agreement, up to $10,000,000 of consideration that is not in the form of cash and Permitted Investments may nevertheless be treated as such so long as the Borrower Agent has given the Agent written notice thereof, (ii) in the case of any sale, transfer or disposition of ABL Collateral, Holdings or a Subsidiary shall receive not less than 100% of such consideration in the form of cash or Permitted Investments and shall, concurrently therewith, submit an updated Borrowing Base Certificate to the Agent after giving effect to such transaction, (iii) after giving effect to any such sale, transfer or disposition, no Default or Event of Default shall have occurred and be continuing, (iv) to the extent applicable, the Net Cash Proceeds thereof are used to prepay the Revolving Loans as required by Section 2.11(c) and (v) the aggregate consideration received in connection with all such sales, transfers and other dispositions during any fiscal year of Holdings shall not exceed 20% of Consolidated Net Tangible Assets as of the last day of the immediately preceding fiscal year;
(h) exchanges sales, leases, transfers and dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property for fair value,or (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement property;
(i) assets set forth on Schedule 6.05,sales, leases, transfers and dispositions permitted by Sections 6.03 and 6.08 and Liens permitted by Section 6.02;
(j) the sale leases, subleases, space leases, licenses or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment sublicenses, in default,
(l) the licensing of intellectual property each case in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that and which do not materially interfere in any material respect with the business of the Borrower or any Group Members;
(k) sales, leases, transfers and dispositions listed on Schedule 6.05;
(l) sales, transfers and other dispositions of its Restricted Subsidiaries, assets pursuant to the Crude Oil Intermediation Agreement; and
(pm) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. provided that all sales, transfers, leases transfers and other dispositions permitted hereby of assets not constituting Collateral; provided that (other than those permitted by paragraphs (b)i) after giving effect to any such sale, (c)transfer or disposition, (f), (l), (n) no Event of Default shall have occurred and be continuing and (pii) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all the Net Cash Proceeds of such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease transfer or other disposition are concurrently reinvested by Holdings and the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration)in their business for general working capital purposes.
Appears in 2 contracts
Samples: Credit Agreement (Northern Tier Energy LP), Credit Agreement (Northern Tier Energy, Inc.)
Asset Sales. The Borrower None of Xxxxxx USA, the Company or any other Subsidiary will not, and will not permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to Xxxxxx USA, the Borrower Company or another Restricted any other Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess , and other than directors’ qualifying shares and other nominal amounts of $2,500,000 for any individual transaction or series of related transactionsEquity Interests that are required to be held by other Persons under applicable law), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers transfers, leases and other dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible of inventory or used or surplus equipment or property of cash and Permitted Investments;
(b) sales in the ordinary course of business,business of immaterial assets, including individual retail sales establishments and terminals;
(bc) sales, transfers transfers, leases and other dispositions to Xxxxxx USA, the Borrower Company or any Restricted other Subsidiary; provided that any such sales, transfers transfers, leases or other dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section Sections 6.04 and 6.09,
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,;
(d) sales, transfers or other dispositions of accounts receivable in connection with the compromise or collection thereof in the ordinary course of business consistent with past practice and not as part of any accounts receivables financing transaction;
(e) dispositions of assets subject to any casualty or condemnation proceeding (including dispositions in lieu of condemnation);
(f) dispositions of property to the extent that (i) such property constitutes an investment permitted by clauses (b), (h), (l) and (n) is exchanged for credit against the purchase price of Section 6.04,
(e) sale and leaseback transactions permitted by Section 6.06,
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any replacement property or asset (ii) the proceeds of such disposition are promptly applied to the Borrower or any Restricted Subsidiary,purchase price of such replacement property;
(g) sales, transfers transfers, leases and other dispositions made as part of the Transactions;
(h) sales, transfers, leases and other dispositions made as part of the Calumet Transaction;
(i) sales, transfers, leases and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph clause of this Section 6.05,
(h) exchanges of property for similar replacement property for fair value,
Section; provided that (i) the aggregate fair value of all assets set forth sold, transferred, leased or otherwise disposed of in reliance on Schedule 6.05,
this clause shall not exceed $30,000,000 during any fiscal year of Xxxxxx USA, and (jii) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) above) made in reliance on this clause shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration; and
(j) sales of the Equity Interests in or assets of any Ethanol Subsidiary. Notwithstanding the foregoing, plus (for all such salesother than dispositions to the Company or another Subsidiary in compliance with Section 6.04, transfers, leases and other dispositions permitted hereby) an aggregate additional amount than directors’ qualifying shares and other nominal amounts of non-cash consideration in the amount Equity Interests that are required to be held by other Persons under applicable requirements of $20,000,000 (it being understood that for purposes of paragraph (a) abovelaw, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable no such sale, transfer, lease transfer or other disposition of any Equity Interests in any Subsidiary shall be permitted unless (i) such Equity Interests constitute all the Equity Interests in such Subsidiary held by Xxxxxx USA and the Borrower or any of its Restricted Subsidiaries and (ii) immediately after giving effect to such transaction, Xxxxxx USA and the Subsidiaries shall otherwise be deemed to constitute cash consideration)in compliance with Section 6.04.
Appears in 2 contracts
Samples: Credit Agreement (Murphy USA Inc.), Credit Agreement (Murphy USA Inc.)
Asset Sales. The Borrower will not, and will not ------------ permit any Restricted Subsidiary of its Subsidiaries to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)capital stock of another Person, nor will the Borrower permit any Restricted Subsidiary of it Subsidiaries to issue any additional Equity Interest shares of such Subsidiary's capital stock or other ownership interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactionsSubsidiary, except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) salessales of inventory, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible used or surplus equipment or property and Permitted Investments and non-exclusive licenses of intellectual property, in each case in the ordinary course of business,;
(b) sales, transfers and dispositions to the Borrower or any Restricted a Subsidiary; provided that any such sales, transfers or dispositions involving to a Non-Subsidiary -------- that is not a Loan Party shall (i) be deemed an investment in such Subsidiary and (ii) be made in compliance with Section 6.09,6.04;
(c) Asset Swaps permitted under Section 6.04(i);
(d) sales, transfers or dispositions of assets constituting investments permitted under Section 6.04(j); and
(e) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,
(e) sale and leaseback transactions permitted by Section 6.06,
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph clause of this Section 6.05,
(h) exchanges Section; provided that the aggregate fair -------- market value of property for similar replacement property for fair value,
(i) all assets set forth on Schedule 6.05,
(j) the sale sold, transferred or other disposition otherwise disposed of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to reliance upon this clause (sd) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of shall not exceed $10,000,000 during any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business fiscal year of the Borrower or any of its Restricted SubsidiariesBorrower, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. provided that all sales, transfers, leases and other dispositions permitted -------- hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) above) shall be made for fair value and (other than those sales, transfers and other dispositions permitted by paragraphs under clause (b) or (c), (d), (h), (l), (n) and (p) above) for at least 7580% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 2 contracts
Samples: Credit Agreement (Eagle Family Foods Inc), Credit Agreement (Eagle Family Foods Inc)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and business, (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,business and (iii) the abandonment or other disposition of immaterial intellectual property that is, in the reasonable judgment of the Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Borrower and its Subsidiaries taken as a whole;
(b) sales, transfers and dispositions to the Borrower any Loan Party or any Restricted Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section Sections 6.04 and 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment Permitted Investments and other investments permitted by clauses (b), (h), (li) and (nk) of Section 6.04,;
(e) sale Sale and leaseback transactions Leaseback Transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,;
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,Section; provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (g) shall not exceed $25,000,000 during the term of this Agreement;
(h) exchanges leases or subleases of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale real or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual personal property in the ordinary course of business or and in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, applicable Collateral Documents; and
(pi) the sale of Equity Interests in joint ventures to the extent required transactions permitted by Section 6.03 or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. Section 6.04; provided that all sales, transfers, leases and other dispositions permitted hereby in respect of property having a value in excess of $600,000 (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (pf) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 2 contracts
Samples: Senior Secured Credit Agreement (Lifetime Brands, Inc), Senior Secured Credit Agreement (Lifetime Brands, Inc)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory Inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions of assets to the Borrower or any Restricted Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services Accounts (excluding sales or accounts receivable (including at dispositions in a discountfactoring arrangement) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment Permitted Investments and other investments permitted by clauses (b), (h), (li) and (nk) of Section 6.04,;
(e) sale Sale and leaseback transactions Leaseback Transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,; and
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph clause of this Section 6.05,
Section; provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (hg) exchanges of property for similar replacement property for fair value,
shall not exceed five percent (i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s5%) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business Consolidated Total Assets of the Borrower and its Subsidiaries for the most recently ended period of four fiscal quarters during any fiscal year of the Borrower for which financial statements shall have been delivered pursuant to Section 5.01(a) or any of its Restricted Subsidiaries5.01(b) (or, and
(p) the sale of Equity Interests in joint ventures prior to the extent required by or made pursuant todelivery of any such financial statements, customary buy/sell arrangements entered into the most recent financial statements referred to in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. Section 3.04(a)), as applicable; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) above) shall be made for fair value and under this Section 6.05 (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (pf) above) shall be made for fair value and for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Asset Sales. The Parent Borrower will not, and will not permit any Restricted Subsidiary of the Subsidiaries to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests any such sale, transfer, lease or Equity Interests required by applicable law to be held by a Person other than disposition resulting from any casualty or condemnation of any assets of the Parent Borrower a Restricted Subsidiaryor any of the Subsidiaries), nor will the Parent Borrower permit any Restricted Subsidiary of the Subsidiaries to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactionsSubsidiary, except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) salessales of inventory, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible used or surplus equipment or tangible property and Permitted Investments in the ordinary course of business,;
(b) sales, transfers transfers, issuances and dispositions to the Parent Borrower or any Restricted a Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,6.10;
(c) leases and licenses entered into in the ordinary course of business;
(d) sales in connection with sale-leasebacks permitted under Section 6.07;
(e) sales of investments referred to in clauses (b), (f), (l) and (m) of Section 6.05;
(f) sales, transfers and dispositions of products, services or accounts receivable assets (including at other than Equity Interests of a discountSubsidiary) in connection with the compromise, settlement or collection thereof consistent with past practice,
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment that are not permitted by clauses (b)any other clause of this Section; provided that the aggregate fair market value of all assets sold, (h), (l) and (n) transferred or otherwise disposed of Section 6.04,
(e) sale and leaseback transactions permitted by Section 6.06,
in reliance upon this clause (f) dispositions resulting from any casualty or other insured damage toshall not, or any taking under power in the aggregate, exceed $5,000,000 during the term of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,this Agreement;
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,Foreign Assets;
(h) exchanges of property for similar replacement property for fair value,transfers and dispositions constituting investments permitted under Section 6.05; and
(i) sales, transfers and dispositions of the assets set forth on in Schedule 6.05,
(j) 6.06; provided that the sale or other disposition Parent Borrower provides the Administrative Agent, the Collateral Agent with written notice of Permitted Investments,
(k) the sale any such sale, transfer or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other not less than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures five Business Days prior to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. consummation thereof; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) above) shall be made for an amount not less than fair value and (other than as determined in good faith by the Board of Directors of the Parent Borrower), or, in the case of clause (d) above, for an amount, if less, equal to the aggregate cost expended for the property that is the subject of such sale-leaseback (except that those permitted by paragraphs clause (b), (d), (h), (l), (na) above shall be made on terms that are customary in the ordinary course) and for consideration in cash. For purposes of this Section 6.06, the following shall be deemed to be cash: (pa) above) for at least 75% cash considerationthe assumption of any liabilities of the Parent Borrower or any Subsidiary with respect to, plus and the release of the Parent Borrower or such Subsidiary from all liability in respect of, any Indebtedness of the Parent Borrower or the Subsidiaries permitted hereunder (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (asuch Indebtedness) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable connection with a sale, transfer, lease or other disposition of Second-Priority Collateral permitted under Section 6.06 and (b) securities received by the Parent Borrower or any Subsidiary from the transferee that are immediately convertible into cash without breach of its Restricted Subsidiaries their terms or the agreement pursuant to which they were purchased and that are promptly converted by the Parent Borrower or such Subsidiary into cash. For purposes of this Section 6.06 and for so long as any Senior First Lien Notes that are secured by a first-priority Lien on the Second-Priority Collateral remain outstanding, (a) any sale, transfer, lease or other disposition of the Equity Interests of any Loan Party that owns assets constituting First-Priority Collateral or Second-Priority Collateral shall be deemed to constitute cash consideration)be a sale, transfer, lease or disposition of such First-Priority Collateral or Second-Priority Collateral, (b) any sale, transfer, lease or other disposition of Equity Interests of a Loan Party that owns both First-Priority Collateral and Second-Priority Collateral shall be deemed to be a separate sale, transfer, lease or disposition of such First-Priority Collateral and such Second-Priority Collateral) and (c) the proceeds received by the Parent Borrower or any Subsidiary in respect of any such sale, transfer, lease or disposition referred to in clause (b) above (or any sale, transfer, lease or other disposition of assets (other than those described in clause (b) above) including both First-Priority Collateral and Second-Priority Collateral without allocating the purchase price between First-Priority Collateral and Second-Priority Collateral) shall be allocated to the First-Priority Collateral and the Second-Priority Collateral pursuant to the terms of the Intercreditor Agreement.
Appears in 1 contract
Samples: Credit Agreement (Pliant Corp)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any of the Restricted Subsidiary Subsidiaries to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower any Loan Party permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower another Loan Parry or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) the sales, transfers, leases or dispositions of assets described in Schedule 6.05;
(b) sales, transfers and dispositions of (i) inventory Inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment Equipment or property in the ordinary course of business,
(b) sales, transfers and dispositions to the Borrower or any Restricted Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services to any Borrower or accounts receivable any Subsidiary that would have been permitted as (including at a discountand which shall be deemed to be) in connection with the compromise, settlement or collection thereof consistent with past practice,Investments under Section 6.04;
(d) sales, transfers and dispositions of property to accounts receivable in the extent such property constitutes an investment permitted by clauses (b)ordinary course of business in connection with the compromise, (h), (l) and (n) of Section 6.04,settlement or collection thereof;
(e) sale and leaseback transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the any Borrower or any Restricted Subsidiary,, or pursuant to a sale thereof to a purchaser with such power under threat of such a taking;
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section; provided that both immediately before and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and the aggregate fair market value of all Borrowing Base Collateral sold, transferred or otherwise disposed of since the Effective Date in reliance upon this paragraph (g) shall not exceed either (i) $10,000,000 in respect of any assets that are included in the Borrowing Base Collateral sold as part of a single transaction or a series of related transactions and the Net Proceeds of all sales, transfers and other dispositions of assets included in the Borrowing Base Collateral made pursuant to this paragraph (g),(i) do not exceed $20,000,000 in any fiscal year or (ii) $125,000,000 in the aggregate after the Effective Date in respect of any other sales, transfers and other dispositions of assets included in the Borrowing Base Collateral; provided that in the case of any such sales, transfers and other dispositions of amounts included in the Borrowing Base Collateral, an amount equal to 100% of the Net Proceeds of such sales, transfers and other dispositions is applied in accordance with Section 6.05,2.11(d)(ii);
(h) exchanges of property for similar replacement property for fair value,Restricted Payments permitted by Section 6.08;
(i) assets set forth on Schedule 6.05,dispositions of cash and Permitted Investments in the ordinary course of business;
(j) dispositions pursuant to the sale or other disposition of Permitted Investments,Specified Foreign Restructuring; and
(k) the sale leases, subleases, licenses or disposition sublicenses of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual real property in the ordinary course of business or and in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. applicable Collateral Documents; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (lh), (ni) and (pj) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% (or, in the case of Borrowing Base Collateral, 100%) cash consideration, plus (consideration or Designated Non-Cash Consideration in an aggregate amount not to exceed $20,000,000 outstanding at any time; provided further that for all such any sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of nonassets of a Loan Party or any of its Restricted Subsidiaries constituting Borrowing Base Collateral, in respect of which Designated Non-cash consideration Cash Consideration is received, Availability exceeds 25% of the total Revolving Commitment then in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable effect after giving effect to such sale, transfer, lease or other disposition by the Borrower of assets of a Loan Party or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration)on a Pro Forma Basis.
Appears in 1 contract
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the any Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the another Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except: DB1/ 102580159.10 84
(a) sales, transfers and dispositions of (i) inventory Inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,
; (b) sales, transfers and dispositions to the Borrower of assets that are solely among: (i) Borrowers, (ii) Loan Parties (other than Borrowers), or any Restricted Subsidiary(iii) Subsidiaries that are not Loan Parties; provided that any such sales, transfers or dispositions involving a Non-Loan Party shall be made in compliance with Section 6.09,
; (c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) Accounts in connection with the compromise, settlement or collection thereof consistent (including, without limitation, sales, transfers and dispositions of Accounts not in excess of $500,000, in the aggregate, in connection with past practice,
supply chain financing, open account services and similar trade finance services); (d) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,
Permitted Investments; (e) sale Sale and leaseback transactions Leaseback Transactions permitted by Section 6.06,
; (f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the any Borrower or any Restricted Subsidiary,
; and (g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are soldSubsidiary, Accounts, Inventory or intellectual property) that are not permitted by any other paragraph clause of this Section 6.05,
Section, provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (hg) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of shall not exceed $500,000 during any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business fiscal year of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. Company; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs clauses (b), (c), (f), (l), (n) and (pf) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Samples: Credit Agreement (Nautilus, Inc.)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary of the Subsidiaries to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest of any Subsidiary of the Company owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the any Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactionsSubsidiary, except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions (other than to any Borrower or any Subsidiary) of (i) inventory in the ordinary course of business and business; (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,; and (iii) the Specified Property and any personal property associated therewith that is being sold, transferred or disposed of in connection therewith;
(b) sales, transfers and dispositions to the any Borrower or any Restricted Subsidiary; provided that (i) if any such sales, transfers or dispositions involving are in the form of any Investment, such sales, transfers or dispositions shall be made in compliance with Section 6.04(c), (o), (p) or (u) and (ii) any such sales, transfers or dispositions to a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or (i) accounts receivable (including at a discount) or note receivables in connection with the compromise, settlement or collection thereof consistent and (ii) Investments received in connection with past practice,the bankruptcy or reorganization of, or settlement of disputes with, or judgments against, or foreclosure or deed in lieu of foreclosure with respect to, customers and suppliers of the Borrowers or the Subsidiaries;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment (i) cash and Permitted Investments and other investments permitted by clauses (beach of Section 6.04(a)(ii), (he), (lf)(ii), (f)(iii), (m) or (s), and (nii) Investments described in items 2 through 18 of Section 6.04,Schedule 6.04(b);
(e) sale and leaseback transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the any Borrower or any Restricted Subsidiary,; and
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary wholly-owned Subsidiary, unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section; provided that (i) the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (g) shall not exceed $100,000,000 during any Fiscal Year and (ii) at the time of and immediately after giving effect to any such sale, transfer or other disposition or a commitment of any Borrower or Subsidiary with respect thereto, whichever comes first, on a Pro Forma Basis, (A) no Default or Event of Default shall have occurred and be continuing and (B) if such sale, transfer or other disposition is of an operating facility, line of business or Subsidiary the Borrowers shall be in compliance with the covenants set forth in Section 6.05,6.13 (for the Test Period ending immediately preceding such sale, transfer or other disposition for which financial statements have been delivered pursuant to Section 5.01(a) or (b));
(h) exchanges sales, transfers, leases or other dispositions by the Company or any of property for similar replacement property for fair value,its Subsidiaries of assets that were acquired in connection with a Permitted Acquisition (other than Equity Interests in a wholly-owned Subsidiary, unless all Equity Interests in such Subsidiary are sold); provided that any such sale, transfer, lease or other disposition shall be made or contractually committed to be made within 270 days of the date such assets were acquired by the Company or such Subsidiary;
(i) assets set forth on Schedule 6.05,
(j) licensing and cross-licensing arrangements involving any intellectual property of the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower Company or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property Subsidiaries in the ordinary course of business or in accordance with industry practice,business;
(mj) the salesales, leasetransfers, conveyanceleases, disposition or and other transfer dispositions of (a) the Equity Interests ofproperty that is exchanged, or any Investment inthe proceeds thereof are applied, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) each case, in a substantially contemporaneous acquisition of Section 6.04,similar replacement property;
(nk) surrender leases, subleases, licenses or waiver sublicenses of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons property in the ordinary course of business that do not materially interfere in any material respect with the business of the Borrower or any of Company and its Restricted Subsidiaries, and;
(pl) the sale sales, transfers, leases and other dispositions of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into property in the ordinary course of business consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination of the Company and in the exercise of its reasonable business judgment, are not material to the conduct of the business of the Company and its Subsidiaries;
(m) sales, transfers, leases and other dispositions of Investments in joint ventures and non-wholly owned Subsidiaries of the Company to the extent required by, or made pursuant to, buy and sell arrangements or similar arrangements between the joint venture parties and sent holding the Equity Interests of such Persons set forth in joint venture arrangements or similar binding agreements. ;
(n) sales, transfers, leases and other dispositions of real property and related assets in the ordinary course of business in connection with relocation of officers or employees of the Company and the Subsidiaries;
(o) voluntary terminations of Swap Agreements;
(p) the expiration of any option to buy or sell any real or personal property; and
(q) Liens permitted by Section 6.02, Investments permitted by Section 6.04 and Restricted Payments permitted by Section 6.08; provided that all sales, transfers, leases and other dispositions permitted hereby shall be made for (x) fair value (other than those permitted by paragraphs (b), (cf), (fi), (k), (l), (nm), (p) and (pq) above) shall be made for fair value and (y) at least 75% cash consideration (other than those permitted by paragraphs (b), (df), (hi), (j), (l), (nm), (p) and (pq) above) for at least 75% cash consideration), plus (for all such sales, transfers, leases and in each case other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 than Excluded Transactions (it being understood that for purposes the exclusions set forth in this proviso shall not limit the effect of paragraph (a) aboveSection 6.09); and provided, accounts receivable received in the ordinary course and any property received in exchange for usedfurther, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable no sale, transfer, lease transfer or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash considerationpermitted under this Section 6.05, if prohibited under Section 6.03).
Appears in 1 contract
Asset Sales. The Borrower will not, and will not permit Effect any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) disposition of any assetproperty, including or agree to effect any Equity Interest owned by it disposition of any property, except that the following shall be permitted:
(a) dispositions of surplus, worn out or obsolete property (other than directors’ qualifying Equity Interests Vessels) by the Borrower or Equity Interests required by applicable law any of its Restricted Subsidiaries in the ordinary course of business and the abandonment or other disposition of Intellectual Property that is, in the reasonable good faith judgment of the Borrower, no longer economically practicable to be held by maintain or useful in the conduct of the business of the Restricted Parties taken as a Person whole;
(b) other dispositions of property (other than the Borrower Equity Interests of a Restricted SubsidiarySubsidiary Guarantor unless all of the Equity Interests of such Subsidiary Guarantor is sold in compliance with this clause (b)); provided, nor will that (i) no Event of Default then exists or would result therefrom, (ii) the Borrower permit aggregate consideration received in respect of all dispositions of property pursuant to this clause (b) shall not exceed $200,000,000, (iii) such dispositions of property are made for Fair Market Value and on an arms-length commercial basis and (iv) at least 75% of the consideration payable in respect of such disposition of property is in the form of cash or Cash Equivalents and is received at the time of the consummation of any Restricted Subsidiary to issue any additional Equity Interest such disposition;
(c) leases of, or charter contracts in such Restricted Subsidiary respect of, real or personal property (other than to Sale and Leaseback Transactions) in the Borrower or another Restricted Subsidiary ordinary course of business and in accordance with the applicable Security Documents;
(d) the Transactions as contemplated by, and in compliance with, the Transaction Documents;
(e) Investments in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions, except (in each case, whether effected pursuant to a Division or otherwise):;
(af) sales, transfers dispositions consisting of mergers and dispositions consolidations in compliance with Section 6.05;
(g) Dividends in compliance with Section 6.08;
(h) sales of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible or surplus equipment or property dispositions of cash and Cash Equivalents in the ordinary course of business,;
(bi) sales, transfers and dispositions any disposition of property that constitutes a Casualty Event;
(j) any disposition of property by (i) any Restricted Subsidiary of the Borrower to the Borrower or any Restricted Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Loan Party shall be made in compliance with Section 6.09,
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) Subsidiary Guarantor and (nii) of Section 6.04,
(e) sale and leaseback transactions permitted by Section 6.06,
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset Restricted Subsidiary of the Borrower or any Restricted Subsidiary,
(g) sales, transfers and other dispositions of assets (other than Equity Interests in that is not a Loan Party to another Restricted Subsidiary unless all Equity Interests in of the Borrower that is not a Loan Party; provided, that if the transferor of such Restricted property is a Loan Party, the transferee thereof must be the Borrower or a Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,
(h) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,Guarantor;
(k) the sale grants of non-exclusive licenses or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property sublicenses in the ordinary course of business or in accordance with industry practice,
(m) to use the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, Borrower’s or any Investment in, any Unrestricted Subsidiary Restricted Subsidiaries’ Intellectual Property and technology to the extent that such license or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) sublicense does not materially impair the conduct of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, Subsidiaries or otherwise prohibit the Collateral Agent from obtaining a security interest in the Intellectual Property or technology subject to such license or sublicense; and
(pl) the sale of Equity Interests in joint ventures to the extent required by sales, forgiveness or made pursuant to, customary buy/sell arrangements entered into other dispositions without recourse in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received arising in the ordinary course of business in connection with the collection or compromise thereof but not as part of any financing transaction. To the extent the requisite Lenders under Section 11.02(b) waive the provisions of this Section 6.06, with respect to the sale of any Collateral not otherwise permitted under this Agreement, or any Collateral is sold as permitted by this Section 6.06, such Collateral (unless sold to a Loan Party), but not the proceeds thereof, shall be sold free and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following clear of the applicable sale, transfer, lease or other disposition Liens created by the Security Documents, and, so long as the Borrower shall have previously provided to the Administrative Agent and the Collateral Agent such certifications or any of its Restricted Subsidiaries documents as the Administrative Agent and/or the Collateral Agent shall be deemed reasonably request in order to constitute cash consideration)demonstrate compliance with this Section 6.06, the Collateral Agent shall take all actions it deems appropriate in order to effect the foregoing.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Overseas Shipholding Group Inc)
Asset Sales. The Borrower will not, and nor will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and inventory, (ii) cash or cash equivalents and (iii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property property, in each case in the ordinary course of business,;
(b) sales, transfers and dispositions of assets to the Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Restricted Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,6.07;
(c) sales, transfers and dispositions of products, services Accounts (excluding sales or accounts receivable (including at dispositions in a discountfactoring arrangement) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,Permitted Investments;
(ei) sale Sale and leaseback Leaseback transactions permitted by Section 6.06,6.10 and sales, dispositions, transfers leases or other dispositions permitted under Section 6.03;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,;
(g) transfers of accounts receivables (and rights ancillary thereto) pursuant to, and in accordance with the terms of, factoring agreements related to factoring programs in Brazil in an aggregate amount not to exceed $35,000,000;
(h) issuances of common stock of any entity set forth on Schedule 6.09; and
(i) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph clause of this Section 6.05,
(h) exchanges Section, provided that the aggregate fair market value of property for similar replacement property for fair value,
all assets sold, transferred or otherwise disposed of in reliance upon this clause (i) assets set forth on Schedule 6.05,
(jx) during the sale twelve-month period ending with the month in which any such sale, transfer or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property occurs, does not exceed, in the ordinary course aggregate, 15% of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business consolidated total assets of the Borrower or any of and its Restricted SubsidiariesSubsidiaries and (y) 30% of the consolidated total assets of the Borrower and its Restricted Subsidiaries after the Effective Date, and
(pin each case determined as of the last day of the Borrower’s most recently completed fiscal year in respect of which the Borrower has delivered financial statements pursuant to Section 3.04(a) the sale of Equity Interests in joint ventures to the extent required by or made pursuant toSection 5.01, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. as applicable; provided that all sales, transfers, leases and other dispositions permitted hereby under this Section 6.09 (other than those permitted by paragraphs clauses (b), (c), (f), (l), (nd) and (pf) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration)value.
Appears in 1 contract
Samples: Credit Agreement (Groupon, Inc.)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the any Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the another Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory Inventory in the ordinary course of business and business, (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,, (iii) dispositions of fixed assets no longer used or useful in the ordinary course of business; NAI-1500544456v14 92
(b) sales, transfers and dispositions of assets to the any Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) Accounts in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment Permitted Investments and other investments permitted by (i) clauses (b), (h), (li) and (nm) of Section 6.04 and (ii) clauses (j) and (k) of Section 6.04,; provided, that, with respect to this subclause (ii), no Default is in existence;
(e) sale Sale and leaseback transactions Leaseback Transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the any Borrower or any Restricted Subsidiary,; and
(g) sales, transfers and other dispositions terminations of assets (other than Equity Interests in a Restricted leases by the applicable Loan Party or Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,
(h) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons Loan Party in the ordinary course of business that do not interfere in any material respect with the business of the Borrower Loan Parties or any of its Restricted their Subsidiaries, and;
(ph) any sale, transfer, assignment, disposition, abandonment or lapse of Intellectual Property that is no longer commercially practicable, usable or desirable in the sale conduct of Equity Interests in joint ventures to the extent required by or made pursuant tobusiness, customary buy/sell arrangements entered into in the ordinary course of business between business; and
(i) sales, transfers and other dispositions of assets (other than (i) Equity Interests in a Subsidiary unless all Equity Interests in such Subsidiary are sold and (ii) Accounts of a Borrower) that are not permitted by any other clause of this Section, provided that the joint venture parties and sent forth aggregate fair market value of all assets sold, transferred or otherwise disposed of in joint venture agreements. reliance upon this paragraph (i) shall not exceed $5,000,000 during any fiscal year of the Company; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (ng) and (ph) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Samples: Credit Agreement (Opko Health, Inc.)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers transfers, leases and dispositions of (i) inventory Inventory in the ordinary course of business business, including transfers of Inventory under trial evaluation arrangements in contemplation of a sale or lease; provided that the aggregate fair market value of Inventory leased or under trial evaluation arrangements in contemplation of a sale or lease shall not exceed $750,000 at any one time; and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment Equipment or property in the ordinary course of business,;
(b) sales, transfers transfers, and dispositions of assets to the Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services Accounts (excluding sales or accounts receivable (including at dispositions in a discountfactoring arrangement) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment Permitted Investments and other investments permitted by clauses (b), (h), (li) and (nk) of Section 6.04,
(e) sale Sale and leaseback transactions Leaseback Transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,; and
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph clause of this Section 6.05,
Section, provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (hg) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of shall not exceed $500,000 during any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business fiscal year of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. Borrower; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) above) shall be made for fair value and under this Section 6.05 (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (pf) above) shall be made for at least 75% fair value and for cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).”
Appears in 1 contract
Samples: Loan Documents (Par Technology Corp)
Asset Sales. The Holdings and the Borrower will not, and will not permit any other Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest Interests owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower Holdings permit any of its Restricted Subsidiary Subsidiaries to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactionsInterests, except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and transfers, leases or other dispositions of (i) inventory in the ordinary course fiber optic cable capacity, sales of business inventory, and (ii) used, damaged, obsolete, worn out, negligible sales of used or surplus equipment or property and Cash Equivalent Investments, in each case in the ordinary course of business,;
(b) sales, transfers and dispositions to the Borrower or any Restricted a Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) issuances to the Borrower or any other Restricted Subsidiary of Equity Interests in any Restricted Subsidiary other than the Borrower;
(d) issuances to Holdings by the Borrower of Qualifying Equity Interests in the Borrower;
(e) Permitted Telecommunications Asset Dispositions;
(f) sales, transfers and dispositions of productsassets to the extent constituting Investments permitted under Section 6.04;
(g) Restricted Payments permitted under Section 6.07(a) and payments of principal and interest permitted under Section 6.07(b);
(h) the sale, services transfer or accounts receivable other dispositions required by Section 5.17 or 5.18;
(including at a discounti) any transfer of Receivables and Related Transferred Rights (each as defined in the Security Agreement attached hereto as Exhibit K) in connection with the compromise, settlement order to consummate a Permitted Receivables Transaction or collection thereof consistent with past practice,to transfer such assets pursuant to a factoring arrangement; and
(dj) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,
(e) sale and leaseback transactions permitted by Section 6.06,
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are soldTelecommunications Assets) that are not permitted by any other paragraph clause of this Section 6.05,
(hSection; provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon THIS SECTION 6.05(j) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of shall not exceed $25,000,000 during any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business fiscal year of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. Borrower; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (nunder Sections 6.05(e) and (p) above6.05(j) shall be made (x) for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (ny) and (p) above) for only if at least 75% of the consideration paid therefor is cash considerationor Cash Equivalent Investments (or, plus (for all if less than 75%, the remainder of such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount consideration consists of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash considerationTelecommunications Assets).
Appears in 1 contract
Samples: Credit Agreement (Williams Communications Group Inc)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Kodiak Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Kodiak Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory Inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or other property in the ordinary course of business,;
(b) sales, transfers and dispositions of assets to the Kodiak Borrower (or, after a Successful IPO, Kodiak Corp) or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) Accounts in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment Permitted Investments and other investments permitted by clauses (b), (h), (li) and (nk) of Section 6.04,;
(e) sale Sale and leaseback transactions Leaseback Transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Kodiak Borrower or any Restricted Subsidiary,;
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,Section, provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this clause (g) shall not exceed $100,000,000 during any fiscal year of the Kodiak Borrower (the “Asset Disposition Limitation”), provided, however, in the event the Loan Parties and their Subsidiaries do not utilize the entire Asset Disposition Limitation in any fiscal year, the Loan Parties and their Subsidiaries may carry forward to the next two succeeding fiscal years 100% of the unutilized portion; provided, further, that if more than 5.0% of the assets included in the most recent calculation of the Borrowing Base are being disposed of in a transaction permitted by this clause (g), then the Borrower shall deliver an updated Borrowing Base Certificate to the Administrative Agent within three (3) Business Days (or such later date as the Administrative Agent may agree in its sole discretion) after such disposition; and
(h) exchanges sales, transfers or dispositions of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale equipment or other disposition of Permitted Investments,
(k) the sale Inventory, including, without limitation, Compressor Units or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property Compressor Packages, which were acquired in the ordinary course of business pursuant to a Sale and Leaseback Transaction or in accordance with industry practice,
(m) otherwise, so long as the net proceeds of such sale, lease, conveyance, transfer or disposition exceeds the amount advanced on the applicable equipment or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons Inventory in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. most recently delivered Borrowing Base Certificate; provided that all sales, transfers, leases and other dispositions permitted hereby under this Section 6.05 (other than those permitted by paragraphs clauses (b), (c), (f), (l), (n) and (pf) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Asset Sales. The Borrower Loan Parties will not, and will not permit any Restricted Subsidiary of the Subsidiaries to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)capital stock, nor will the Borrower Loan Parties permit any Restricted Subsidiary of the Subsidiaries to issue any additional Equity Interest shares of its capital stock or other ownership interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactionsSubsidiary, except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course sales of business and (ii) used, damaged, obsolete, worn out, negligible or surplus equipment or property Inventory in the ordinary course of business,, or (ii) sales of used or surplus equipment, or (iii) Permitted Investments, in each case in the ordinary course of business;
(b) sales, transfers and dispositions to among the Borrower or any Restricted Subsidiary; Loan Parties and their Subsidiaries, provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,6.07;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,
(e) sale and sale-leaseback transactions permitted by Section 6.06,
(f) dispositions resulting from involving any casualty or other insured damage toBorrower's Real Estate as long as, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,
(h) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title Eligible Real Estate, the net cash proceeds therefrom are at least equal to the amounts then available to be borrowed with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to thereto under clause (sc) of Section 6.04,
the definition of Borrowing Base, and (nii) surrender or waiver if the Administrative Agent so requests, the Administrative Agent shall have received an intercreditor agreement executed by the purchaser of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures such Real Estate on terms and conditions reasonably satisfactory to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. Administrative Agent; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those sales, transfers and other disposition permitted by paragraphs under clause (b), (c), (f), (l), (n) and (p) above) shall be made at arm's length and for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (nx) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases transfers and other dispositions permitted herebyunder clause (b)); and further provided that the authority granted under clauses (a)(ii), (a)(iii) an aggregate additional amount of non-cash consideration and (c) hereof may be terminated in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received whole or in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition part by the Borrower or Agents upon the occurrence and during the continuance of any Event of its Restricted Subsidiaries shall be deemed to constitute cash consideration)Default.
Appears in 1 contract
Samples: Credit Agreement (Tweeter Home Entertainment Group Inc)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary or any Non-Recourse Pledgor to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the any Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than in compliance with Section 6.03 or to the another Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory Inventory in the ordinary course of business, (ii) Permitted Investments in the ordinary course of business and (iiiii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions of assets to the any Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) Accounts in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers Sale and dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,
(e) sale and leaseback transactions Leaseback Transactions permitted by Section 6.06,;
(fe) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, or confiscation or requisition of use of, any property or asset of the any Borrower or any Restricted Subsidiary,;
(f) to the extent constituting a disposition or transfer, the making of investments permitted under Section 6.04, the granting of Liens permitted under Section 6.02 and the making of Restricted Payments permitted under Section 6.08;
(g) abandonment, cancellation or disposition of any intellectual property of any Loan Party in the ordinary course of business;
(h) sales, transfers and other dispositions of assets (other than (i) Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold, (ii) Accounts, (iii) Inventory and (iv) Compressco Units) that are not permitted by any other paragraph clause of this Section 6.05,
, provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (h) exchanges shall not exceed $25,000,000 during any fiscal year of property for similar replacement property for fair value,the Company;
(i) assets set forth on Schedule 6.05,any disposition of the Company’s Equity Interests pursuant to any employee or director option program, benefit plan or compensation program;
(j) the sale or other disposition granting of Permitted Investments,Liens;
(k) the sale use or disposition transfer of any assets or property received as cash and Cash Equivalents in a result of a foreclosure manner that is not prohibited by the Borrower terms of this Agreement or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,the Collateral Documents;
(l) the licensing leasing or subleasing of intellectual property assets of any Loan Party or its Subsidiaries in the ordinary course of business or in accordance with industry practice,business;
(m) the sale, lease, conveyance, disposition sale or other transfer issuance of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (sDisqualified Equity Interests) of Section 6.04,the Company to the extent not prohibited hereunder;
(n) surrender or waiver equity contributions and other transfers from a Loan Party to any of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,its Subsidiaries that is a Loan Party;
(o) leases dispositions of equipment or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures real property to the extent required by that (i) such property is exchanged for credit against the purchase price of similar replacement property, or made pursuant to(ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement property; provided, customary buy/sell arrangements entered into in that to the ordinary course of business between extent the joint venture parties and sent forth in joint venture agreements. property being transferred constitutes Collateral, such replacement property shall constitute Collateral; provided that all sales, transfers, leases and other dispositions permitted hereby by this Section 6.05 (i) other than those permitted by paragraphs (b), (ce), (fg), (li), (j), and (n) and (p) above) , shall be made for fair value and (ii) other than those permitted by paragraphs (b), (de), (hg), (li), (j), (m), (n) and (po) above) shall be made for at least seventy-five percent (75% %) cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory Inventory and other assets in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,, or of property no longer used or useful in the conduct of the business of the Borrower and its Subsidiaries;
(b) sales, transfers and dispositions to the Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving to a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment (i) investments permitted by clauses (ba), (h), (li), (j) and (np) of Section 6.04,6.04 and (ii) other investments to the extent required by or made pursuant to customary buy/sell arrangements made in the ordinary course of business between the parties to agreements related thereto;
(e) sale Sale and leaseback Lease-Back transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,;
(g) sales, transfers and other dispositions of Accounts, receivables, and residual interests in connection with the HSBC Arrangements or any Permitted Replacement Credit Card Program;
(h) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary owned by a Loan Party are sold) that are not permitted by any other paragraph of this Section 6.05,
Section, provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (h) exchanges (other than in respect of property for similar replacement property for fair value,the sale, transfer or other disposition of the Borrower’s interest in any Unrestricted Subsidiary that was an Unrestricted Subsidiary as of the Closing Date), shall not exceed $50,000,000 during any fiscal year of the Borrower or $250,000,000 in the aggregate after the Closing Date;
(i) assets set forth on Schedule 6.05,sales, transfer and dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement property;
(j) the sale or other disposition of Permitted Investments,sales, transfers and dispositions permitted by Sections 6.03 and 6.08 and Liens permitted by Section 6.02;
(k) the sale leases, subleases, space leases, licenses or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment sublicenses, in default,
(l) the licensing of intellectual property each case in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that and which do not materially interfere in any material respect with the business of Holdings, the Borrower or any of and its Restricted Subsidiaries, and;
(pl) the sale of Equity Interests in joint ventures to the extent required by or made pursuant tosales, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties transfers and sent forth in joint venture agreements. dispositions listed on Schedule 6.05; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (a)(ii), (b), (c), (f), (lg), (ni), (j) and (pk) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration. To the extent any Collateral is disposed of as expressly permitted by this Section 6.05 to any Person other than Holdings, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries Subsidiary, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Agent shall be authorized to take any actions deemed appropriate in order to constitute cash consideration)effect the foregoing.
Appears in 1 contract
Asset Sales. The Borrower No Loan Party will not, and will not permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower any Loan Party permit any Restricted Subsidiary directly owned by such Loan Party to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary Loan Party in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory Inventory in the ordinary course of business and business, (ii) used, damagedobsolete or worn out Equipment, obsolete, worn out, negligible or surplus equipment or (iii) Equipment and other property in the ordinary course of business,;
(b) sales, transfers and dispositions of assets to the any Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Loan Party Unrestricted Subsidiaries shall be made in compliance with Section 6.09,6.09 and transfers among Loan Parties are permitted only so long as the transferee Loan Party is in the same country as the transferor Loan Party or such transfers are to a Loan Party organized in the U.S.;
(c) sales, transfers and dispositions of productsAccounts, services or accounts receivable (including at a discount) and discounts granted with respect to Accounts, in each case in connection with the compromise, settlement or collection thereof consistent with past practice,and in the ordinary course of business;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment Permitted Investments and other investments permitted by clauses (b), (h), (li) and (nk) of Section 6.04,;
(e) sale Sale and leaseback transactions Leaseback Transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,Loan Party;
(g) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and which do not materially interfere with the business of the Loan Parties;
(h) investments permitted by Section 6.04, Restricted Payments permitted by Section 6.08, and Liens permitted by Section 6.02;
(i) dispositions of Property not constituting Collateral;
(j) dispositions of investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in the joint venture arrangements and similar binding agreements; and
(k) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph clause of this Section 6.05,
(h) exchanges Section, provided that the aggregate fair market value of property for similar replacement property for fair value,
(i) all assets set forth on Schedule 6.05,
(j) the sale sold, transferred or other disposition otherwise disposed of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
reliance upon this paragraph (l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or shall not exceed $10,000,000 during any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business fiscal year of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. Company; provided that all sales, transfers, leases and other dispositions permitted hereby shall be made for fair value (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (pi) above) for at least 75% cash considerationand, plus (for all with respect to such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount resulting in Net Proceeds of non-at least $1,000,000, for at least 75% cash consideration (other than those permitted by paragraphs (a)(ii) (solely with respect to Equipment and property not included in the amount of $20,000,000 Borrowing Base), (it being understood that for purposes of paragraph b), (ac) above(to the extent such disposition is permitted under Section 6.04(g)), accounts receivable received in the ordinary course (h), (i) and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration(k)).
Appears in 1 contract
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory Inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions to the Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Restricted Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment investments permitted by clauses (b), (h), (lj) and (nk) of Section 6.04,;
(e) sale and leaseback transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,;
(g) licensing and cross-licensing arrangements entered into in the ordinary course of business involving any technology or other intellectual property of the Borrower or any Restricted Subsidiary;
(h) (i) dispositions of Permitted Investments for fair market value and (ii) leases and subleases not materially interfering with the ordinary course of business; and
(i) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph clause of this Section 6.05,
(h) exchanges Section, provided that the aggregate fair market value of property for similar replacement property for fair value,
all assets sold, transferred or otherwise disposed of in reliance upon this clause (i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of shall not exceed $20,000,000 during any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business fiscal year of the Borrower or any $75,000,000 during the term of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. this Agreement; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs clauses (b), (c), (f), (l), (ng) and (ph)(ii) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount . Table of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).Contents
Appears in 1 contract
Samples: Senior Secured Term Loan Agreement (Orchard Supply Hardware Stores Corp)
Asset Sales. The Borrower will not, and will not permit Effect any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary), nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactionsAsset Sale, except (in each case, whether effected pursuant to a Division or otherwise):that the following shall be permitted:
(a) salesthe disposition for fair market value of obsolete, transfers and dispositions surplus or worn out property or property no longer useful or necessary in the business of the Loan Parties;
(ib) the disposition of cash or Cash Equivalents (in each case in transactions not prohibited hereunder), Investments permitted pursuant to Section 6.04, inventory in the ordinary course of business business, and receivables (in connection with the collection thereof and otherwise as customary in businesses of the type conducted by the Loan Parties);
(c) dispositions permitted by Section 6.05 or Section 6.08;
(d) dispositions of property having a fair market value not in excess of $1,000,000 in the aggregate (with respect to all the Loan Parties) in any fiscal year; provided, that (i) the consideration received for such property shall be in an amount at least equal to the fair market value thereof (determined as of the time of execution of a binding agreement with respect to such dispositions); and (ii) usedthe consideration received therefor shall be at least 75% in cash or Cash Equivalents; provided that for purposes of this clause (ii), damagedeach of the following shall be deemed to be cash: (A) any liabilities (as shown the most recent balance sheet of the Borrower and its consolidated Subsidiaries provided hereunder or in the footnotes thereto) of the Borrower or such Loan Party, obsoleteother than liabilities that are by their terms subordinated to the payment in cash of the Obligations, worn outthat are assumed by the transferee with respect to the applicable disposition and for which the Borrower and the applicable Loan Parties shall have been validly released and (B) any securities or instruments received by the Borrower or such Loan Party from such transferee that are converted by the Borrower or such Loan Party into cash (to the extent of the cash received) within 180 days following the closing of the applicable disposition;
(e) subject to the last paragraph of this Section 6.06, negligible the Borrower and its Restricted Subsidiaries may enter into any leases or surplus equipment subleases with respect to any of its Real Property;
(f) the dedication of space or other dispositions of property in connection with and in furtherance of constructing structures or improvements reasonably related to the development, construction and operation of the Project; provided, that in each case such dedication or other dispositions are in furtherance of, and do not materially impair or interfere with the use or operations (or intended use or operations) of, the Project;
(g) any Loan Party may (i) license trademarks, trade names, copyrights, patents and other Intellectual Property in the ordinary course of business,
(b) sales, transfers and dispositions to the Borrower or any Restricted Subsidiary; provided that any such saleslicensing, transfers individually or dispositions involving a Non-Loan Party shall be made in compliance with Section 6.09,
the aggregate (c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,
(e) sale and leaseback transactions permitted by Section 6.06,
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,
(h) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the saleall Loan Parties), lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do does not interfere in any material respect with the ordinary conduct of the business of the Loan Parties and (ii) abandon any trademarks, trade names, copyrights, patents or other Intellectual Property no longer necessary in the business of the Loan Parties;
(h) the incurrence of Liens permitted under Section 6.02; provided, that any leases (whether or not constituting Permitted Liens) shall be permitted only to the extent provided in subsection (f) above and the last paragraph of this Section 6.06;
(i) Asset Sales in connection with or as a result of any Casualty Event; provided, that the Loan Parties otherwise comply with Section 2.10;
(j) Asset Sales by any Loan Party to the Borrower or any Subsidiary Guarantor, including the lease of its Restricted Subsidiariesthe land constituting the Project Site by AC Property Co to REG; provided, andthat in each case each Subsidiary Guarantor shall have taken all actions required pursuant to Section 5.10 with respect to any property acquired by it pursuant to this clause (k);
(k) the granting of easements, rights of way and rights of access to Governmental Authorities, utility providers, cable or other communication providers and other parties providing services or benefits to the Project, the Real Property held by the Loan Parties or the public at large that (i) do not in any case materially detract from the value of the Real Property, taken as a whole, and (ii) would not reasonably be expected to interfere in any material respect with the construction, development or operation of the Project or the Real Property;
(l) the assignment and/or license of trademarks and related property made pursuant to the Intellectual Property License Agreements;
(m) the lease of the property subject to the CUP Land Lease to CUP Holder or any other party that operates the CUP on the terms set forth in the CUP Land Lease, and any other Asset Sales contemplated under the CUP Land Lease, the Energy Services Agreement or any agreement related or ancillary thereto, in each case on the terms set forth in and in accordance with the Energy Services Agreement; provided that the Collateral Agent on behalf of the Secured Parties shall provide the party to the CUP Land Lease and the agent or representative for the lenders to CUP Holder with a subordination, non-disturbance and attornment agreement relating to (i) the CUP Land Lease and (ii) easements, licenses, leases, permits, rights of way, restrictive covenants and other rights or privileges in the nature of easements or restrictive covenants with respect to or that pertain to any property included in the Project that are reasonably necessary or advisable in connection with the provision of utility services to any Mortgaged Property (the “CUP Easements”), in each case as reasonably required pursuant to the terms thereof;
(n) subject to the requirements of Section 6.22(c), any Loan Party may, subject to obtaining any necessary Gaming Approvals, (i) enter into a master lease with respect to any portion of the Project with a person who shall from time to time directly or indirectly lease or sublease such property to persons who, either directly or through Affiliates of such persons, shall operate or manage all or some of the food and beverage or retail venues within the Project, including without limitation restaurants, night clubs and bars, or recreation venues within the Project, and (ii) grant related declarations of covenants, conditions and restrictions and reservation of easements and common area spaces benefiting the tenants of such lease and subleases generally (collectively, “Master Lease Easements,” and together with any such master lease, are referred to collectively as “Master Lease Documents” and individually as a “Master Lease Document”); provided that (A) no Event of Default shall exist and be continuing at the time any such Master Lease Document is entered into or would occur as a result of entering into such Master Lease Document or sublease permitted pursuant thereto, (B) the Loan Parties shall be required to maintain control (which may be through required contractual standards) over the primary aesthetics and standards of service and quality of the business being operated or conducted in connection with any such leased or subleased space, and (C) no Master Lease Document or operations conducted pursuant thereto would be reasonably expected to materially interfere with, or materially impair or detract from, the operation of the Project; provided, further that (x) the Collateral Agent on behalf of the Secured Parties shall provide the master lessee tenant under any master lease and any tenants under any sublease entered into pursuant to such master lease with a subordination, non-disturbance and attornment agreement substantially in the form of Exhibit F hereto or in such other form as is reasonably satisfactory to the Collateral Agent and the applicable Loan Party, and (y) unless the Administrative Agent shall otherwise waive such requirement, with respect to any such lease or sublease having a term of five years or more and reasonably anticipated annual rents (whether due to base rent, fixed rents, reasonably anticipated percentage rents or other reasonably anticipated rental income from such lease or sublease) in excess of $5,000,000 (other than leases solely between Loan Parties) the applicable Loan Party shall enter into, and cause the tenant under any such Master Lease Document to enter into, such subordination, non-disturbance and attornment agreement;
(o) subject to the requirements of Section 6.22(c) and obtaining any necessary Gaming Approvals, the (i) lease or sublease of, any portion of the Project to persons who, either directly or through Affiliates of such persons, intend to operate or manage a night club, bar, restaurant, recreation, spa, pool, exercise or gym facility, or entertainment or retail venues within the Project and (ii) the grant of related declarations of covenants, conditions and restrictions and reservation of easements and common area spaces benefiting such tenants of such lease and subleases generally (collectively, the “Entertainment Venue Easements,” and together with any such lease or sublease, are referred to collectively as the “Entertainment Venue Documents” and individually as an “Entertainment Venue Document”); provided that (A) no Event of Default shall exist and be continuing at the time any such Entertainment Venue Document is entered into or would occur as a result of entering into such Entertainment Venue Document, (B) the Loan Parties shall be required to maintain control (which may be through required contractual standards) over the primary aesthetics and standards of service and quality of the business being operated or conducted in connection with any such leased or subleased space and (C) no Entertainment Venue Document or operations conducted pursuant thereto would reasonably be expected to materially interfere with, or materially impair or detract from, the operation of the Project; provided further that (x) upon request by the Borrower, the Collateral Agent on behalf of the Secured Parties shall provide the tenant under any Entertainment Venue Document with a subordination, non-disturbance and attornment agreement substantially in the form of Exhibit F hereto or in such other form as is reasonably satisfactory to the Collateral Agent and the applicable Loan Party, and (y) unless the Administrative Agent shall otherwise waive such requirement, with respect to any such lease having a term of five years or more and reasonably anticipated annual rents (whether due to base rent, fixed rents, reasonably anticipated percentage rents or other reasonably anticipated rental income from such lease or sublease) in excess of $5,000,000 (other than leases solely between Loan Parties), the applicable Loan Party shall enter into, and cause the tenant under any such Entertainment Venue Document to enter into, such subordination, non-disturbance and attornment agreement;
(p) the sale of Equity Interests in joint ventures subject to the extent required by requirements of Section 6.22(c) and obtaining any necessary Gaming Approvals, the (i) lease or made pursuant tosublease of, customary buy/sell arrangements any portion of the Project to persons who, either directly or indirectly or through Affiliates of such persons, intend to operate or manage a boutique hotel within the Project and (ii) the grant of related declarations of covenants, conditions and restrictions and reservation of easements and common area spaces benefiting such tenants of such lease and subleases generally (collectively, “Boutique Hotel Easements,” and together with any such master lease, are referred to collectively as “Boutique Hotel Documents” and individually as a “Boutique Hotel Document”); provided that (A) no Event of Default shall exist and be continuing at the time such Boutique Hotel Document is entered into or would occur as a result of entering into such Boutique Hotel Document, (B) the Loan Parties shall be required to maintain control (which may be through required contractual standards) over the primary aesthetics and standards of service and quality of the business being operated or conducted in connection with any such leased or subleased space, (C) no Boutique Hotel Document or operations conducted pursuant thereto would reasonably be expected to materially interfere with, or materially impair or detract from, the operation of the Project, and (D) no more than 350 rooms shall be subject to such boutique hotel; provided, further that (x) upon request by the Borrower, the Collateral Agent on behalf of the Secured Parties shall provide the tenant under any Boutique Hotel Document with a subordination, non-disturbance and attornment agreement substantially in the ordinary course form of business between Exhibit F hereto or in such other form as is reasonably satisfactory to the joint venture parties Collateral Agent and sent forth the applicable Loan Party and (y) unless the Administrative Agent shall otherwise waive such requirement, with respect to any such lease having a term of five years or more and reasonably anticipated annual rents (whether due to base rent, fixed rents, reasonably anticipated percentage rents or other reasonably anticipated rental income from such lease or sublease) in joint venture agreements. provided that all sales, transfers, leases and other dispositions permitted hereby excess of $5,000,000 (other than those leases solely between Loan Parties), the applicable Loan Party shall enter into, and cause the tenant under any Boutique Hotel Document to enter into, such subordination, non-disturbance and attornment agreement; and
(q) Investments permitted by paragraphs under Section 6.04. Notwithstanding the foregoing provisions of this Section 6.06, subsection (f) above shall be subject to the additional provisos that: (a) no Event of Default shall exist and be continuing at the time such transaction, lease or sublease is entered into, (b)) such transaction, lease or sublease would not reasonably be expected to materially interfere with, or materially impair or detract from, the operation of the Project, (c)) no gaming, (f), (l), (n) and (p) above) shall be made for fair value and hotel or casino operations (other than those permitted hotel operations approved in writing by paragraphs (b), (d), (h), (l), (nthe Required Lenders and the operation of arcades and games for minors) and (p) above) for at least 75% cash consideration, plus (for all may be conducted on any space that is subject to such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfertransaction, lease or sublease other disposition than by and for the Borrower benefit of the Loan Parties and (d) no lease or sublease may provide that a Loan Party subordinate its fee, condominium or leasehold interest to any lessee or any party financing any lessee; provided, that (x) the Collateral Agent on behalf of its Restricted Subsidiaries the Secured Parties shall provide the tenant under any such lease or sublease (at the request of the Borrower) with a subordination, non-disturbance and attornment agreement substantially in the form of Exhibit F hereto with such changes as the Collateral Agent may approve, which approval shall not be deemed unreasonably withheld, conditioned or delayed, or in such other form as is reasonably satisfactory to constitute cash considerationthe Collateral Agent and (y) unless the Administrative Agent shall otherwise waive such requirement, with respect to any such lease having a term of five years or more and reasonably anticipated annual rents (whether due to base rent, fixed rents, reasonably anticipated percentage rents or other reasonably anticipated rental income from such lease or sublease) in excess of $5,000,000 (other than leases solely between Loan Parties), the applicable Loan Party shall enter into, and cause the tenant under any such lease or sublease to enter into with the Collateral Agent for the benefit of the Secured Parties, a subordination, non-disturbance and attornment agreement, substantially in the form of Exhibit F hereto with such changes as the Collateral Agent may approve, which approval shall not be unreasonably withheld, conditioned or delayed. For the avoidance of doubt, in no event will the Administrative Agent be required to deliver a subordination, non-disturbance and attornment agreement to the tenant under the REG Lease.
Appears in 1 contract
Samples: Debt Agreement (Revel AC, Inc.)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the any Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the another Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory Inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment Equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions of assets to the any Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) Accounts in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment Permitted Investments and other investments permitted by clauses (b), (h), (li) and (nj) of Section 6.04,;
(e) sale Sale and leaseback transactions Leaseback Transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the any Borrower or any Restricted Subsidiary,;
(g) the sale of undeveloped land of the Borrowers in McMinnville, Oregon; and
(h) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,
Section, provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (hg) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of shall not exceed $250,000 during any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business Fiscal Year of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. Borrowers; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (pf) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Samples: Credit Agreement (Skyline Corp)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) Dispose of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the any Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the another Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions Dispositions of (i) inventory Inventory or goods held for sale in the ordinary course of business and business, (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business (including allowing any registrations or applications for registration of immaterial intellectual property to lapse or go abandoned in the ordinary course of business,), and (iii) cash and Permitted Investments in the ordinary course of business (but not to Affiliates, except as otherwise permitted by the Loan Documents);
(b) sales, transfers and dispositions Dispositions of assets to the any Borrower or any Restricted Subsidiary; , provided that that, (i) any such sales, transfers or dispositions Dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,6.09 and (ii) any such Disposition by a Loan Party to a Subsidiary that is not a Loan Party shall only be permitted to the extent that the Payment Condition shall have been satisfied (as determined by the Administrative Agent in its Permitted Discretion) with respect to each such Disposition;
(c) sales, transfers and dispositions Dispositions of products, services or accounts receivable (including at a discount) delinquent Accounts in connection with the compromise, settlement or collection thereof consistent with past practice,in the ordinary course of business;
(d) salesDispositions of Permitted Investments and other Investments permitted by Section 6.04, transfers and dispositions including any Disposition of property Equipment pursuant to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) terms of Section 6.04,a TRAC Lease Agreement;
(e) sale Sale and leaseback transactions Leaseback Transactions permitted by Section 6.06,;
(f) dispositions Dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the any Borrower or any Restricted Subsidiary,;
(g) salesthe termination of any transaction under any Swap Agreement permitted hereunder;
(h) any Loan Party may lease real or personal property, transfers and other dispositions may license (or sublicense) intellectual property, in the ordinary course of business, to the extent not (i) interfering in any material respect with the business of any Borrower and its Subsidiaries, taken as a whole or (ii) securing Indebtedness; and
(i) Dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph clause of this Section, provided that the aggregate fair market value of all assets Disposed of in reliance upon this Section 6.05,
(h6.05(i) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of shall not exceed $2,500,000 during any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business fiscal year of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. Borrowers; provided that all sales, transfers, leases and other dispositions Dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (pf) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration. Notwithstanding the foregoing, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries Material Transfers Prohibition shall be deemed also apply to constitute cash consideration)this Section 6.05.
Appears in 1 contract
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the any Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the another Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions to the any Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment Permitted Investments and other investments permitted by clauses (b), (h), (li) and (nk) of Section 6.04,;
(e) sale and leaseback transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the any Borrower or any Restricted Subsidiary,;
(g) leases, licenses, subleases and sublicenses of assets in the ordinary course of business of the Borrower and any Subsidiary;
(h) disposition of the Riverside Property provided the Borrowers receive no less than $20,000,000 in Net Proceeds from such disposition and such Net Proceeds are applied in accordance with Section 2.11 hereto and no Default or Event of Default exists or would result from such disposition;
(i) disposition of (i) the real estate assets located at 51 Washington Street, Providence, Rhode Island provided the Borrowers receive no less than $7,000,000 in Net Proceeds from such disposition and (ii) the real estate assets located at 75 Fountain Street, Providence, Rhode Island provided the Borrowers receive no less than $12,000,000 in Net Proceeds from such disposition and, in each case, such Net Proceeds are applied in accordance with Section 2.11 hereto and no Default or Event of Default exists or would result from such disposition;
(j) disposition of real property assets located in Arlington, Texas owned by DFW Printing Company provided the Borrowers receive no less than $1,250,000 in Net Proceeds from such disposition and such Net Proceeds are applied in accordance with Section 2.11 hereto and no Default or Event of Default exists or would result from such disposition;
(k) disposition of real property assets located at 0000 XXX Xxxxxxx, Xxxxxx, Xxxxx owned by The Dallas Morning News, Inc. provided the Borrowers receive no less than $1,250,000 in Net Proceeds from such disposition and such Net Proceeds are applied in accordance with Section 2.11 hereto and no Default or Event of Default exists or would result from such disposition; and
(l) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,
(h) exchanges Section, provided that the aggregate fair market value of property for similar replacement property for fair value,
(i) all assets set forth on Schedule 6.05,
(j) the sale sold, transferred or other disposition otherwise disposed of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
reliance upon this paragraph (l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or shall not exceed $10,000,000 during any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business fiscal year of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. Borrowers; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Samples: Credit Agreement (A. H. Belo CORP)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory Inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment Equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions of assets to the Borrower or any Restricted Subsidiary; provided that any such sales, transfers or dispositions by any Loan Party that is a Foreign Subsidiary, shall only be made to a Loan Party or a Subsidiary that is not a Loan Party (so long as in compliance with Section 6.09), in each case, which is organized in the same country as such transferee Foreign Subsidiary Loan Party or in the United States; provided further that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services Accounts (excluding sales or accounts receivable (including at dispositions in a discountfactoring arrangement) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,Permitted Investments;
(e) sale Sale and leaseback transactions Leaseback Transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,;
(g) sale or other disposition of Cal Ex or the Windset Investment; provided that the proceeds of such sale or disposition are applied in accordance with Section 2.11(c), as applicable; provided, further, that the Net Proceeds of a sale or disposition of Cal Ex need only be applied in accordance with Section 2.11(c) if such Net Proceeds exceed $5,000,000;
(h) leases, subleases, licenses or sublicenses in the ordinary course of business which do not materially interfere with the business of Borrower or its Subsidiaries;
(i) issuance of stock options, equity grants or similar instruments in the Equity Interests of Lifecore to its directors, officers and/or employees in anticipation of a spin-off of Lifecore so long as the amount by which the Borrower’s ownership interest in Lifecore is not diluted by more than ten percent (10%) in the aggregate from all such issuances and each such issuance thereof would not result in a Default of Event of Default; and
(j) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph clause of this Section 6.05,
(h) exchanges of property for similar replacement property for fair value,
Section, provided that (i) at the time of any such sale, transfer or disposition, no Event of Default shall exist or shall result therefrom and (ii) the aggregate fair market value of all assets set forth on Schedule 6.05,
sold, transferred or otherwise disposed of in reliance upon this paragraph (j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of shall not exceed $1,000,000 during any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business fiscal year of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. Borrower; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) above) shall be made for fair value and under this Section 6.05 (other than those permitted by paragraphs (b), (d), (h), (l), (nf) and (pi) above) shall be made for fair value and for at least 7590% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Samples: Credit Agreement (Landec Corp \Ca\)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the any Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the another Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and business, (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,, and (iii) other sales of fixed assets which are not used or usable in the ordinary course of business;
(b) sales, transfers and dispositions to the any Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment Permitted Investments and other investments permitted by clauses (b), (h), (li) and (nk) of Section 6.04,;
(e) sale and leaseback transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the any Borrower or any Restricted Subsidiary,; and
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,
Section, provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (hg) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of shall not exceed $100,000 during any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business fiscal year of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. Borrowers; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (pf) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary of the Subsidiaries to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest Interest, owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary of the Subsidiaries to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactionsSubsidiary, except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) salessales of inventory (including parcels in developed cemetery properties), transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible used or surplus equipment or property and Permitted Investments in the ordinary course of business,;
(b) sales, transfers and dispositions to the Borrower or any Restricted a Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions sales of products, services or accounts receivable (including at a discount) in connection excess undeveloped land with the compromise, settlement or collection thereof consistent with past practice,an aggregate book value for all such sales not greater than $20,000,000;
(d) sales, transfers and dispositions sales of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,investments in connection with Reverse Repurchase Transactions;
(e) sale sales, transfers, leases and leaseback transactions permitted by Section other dispositions of assets set forth on Schedule 6.06,; and
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,
(g) sales, transfers transfers, leases and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are soldaccounts receivable or inventory) that are not permitted by any other paragraph clause of this Section 6.05,
(h) exchanges of property for similar replacement property for fair value,
6.06; provided that (i) the aggregate book value of all assets set forth on Schedule 6.05,
sold, transferred or otherwise disposed of in reliance upon this clause (jf) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property shall not exceed $200,000,000 in the ordinary course of business or in accordance with industry practice,
aggregate, (mii) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. provided that all sales, transfers, leases and other dispositions permitted hereby pursuant to this clause (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) abovee) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (niii) and (p) above) for at least 75% cash consideration, plus (for all if any such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower is made for aggregate consideration in excess of $20,000,000, such sale, transfer, lease or any of its Restricted Subsidiaries other disposition shall be deemed to constitute made for at least 80% cash consideration).
Appears in 1 contract
Samples: Credit Agreement (Service Corporation International)
Asset Sales. The None of Holdings, the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower will, nor will not, and will not they permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower they permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactionsSubsidiary, except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers transfers, leases and other dispositions of (i) inventory in the ordinary course of business and (ii) usedinventory, damaged, obsolete, worn out, negligible used or surplus equipment or property other obsolete assets, Permitted Investments and Investments referred to in Section 6.04(h) in the ordinary course of business,;
(b) sales, transfers and dispositions to the Parent Borrower or any Restricted a Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Domestic Loan Party shall be made in compliance with Section 6.09,;
(c) (i) sales of accounts receivable and related assets pursuant to the Receivables Purchase Agreement, (ii) sales of accounts receivable and related assets by a Foreign Subsidiary pursuant to customary terms whereby recourse and exposure in respect thereof to any Foreign Subsidiary does not exceed at any time $50,000,000 and (iii) sales of accounts receivables and related assets pursuant to the Specified Vendor Receivables Financing.
(d) the creation of Liens permitted by Section 6.02 and dispositions as a result thereof;
(e) sales or transfers that are permitted sale and leaseback transactions pursuant to Section 6.06;
(f) sales and transfers that constitute part of an Acquisition Lease Financing;
(g) Restricted Payments permitted by Section 6.08;
(h) transfers and dispositions constituting investments permitted under Section 6.04;
(i) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,
(d) sales, transfers and other dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,identified on Schedule 6.05; and
(e) sale and leaseback transactions permitted by Section 6.06,
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,
(gj) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are soldSubsidiary) that are not permitted by any other paragraph clause of this Section 6.05,
Section; provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this clause (hj) exchanges of property for similar replacement property for fair value,
shall not exceed (i) 15% of the aggregate fair market value of all assets set forth of the Parent Borrower (determined as of the end of its most recent fiscal year), including any Equity Interests owned by it, during any fiscal year of the Parent Borrower; provided that such amount shall be increased, in respect of the fiscal year ending on Schedule 6.05,
December 31, 2015, and each fiscal year thereafter by an amount equal to the total unused amount of such permitted sales, transfers and other dispositions for the immediately preceding fiscal year (jwithout giving effect to the amount of any unused permitted sales, transfers and other dispositions that were carried forward to such preceding fiscal year) and (ii) 35% of the sale or other disposition aggregate fair market value of Permitted Investments,all assets of the Parent Borrower as of the Restatement Date, including any Equity Interests owned by it, during the term of this Agreement subsequent to the Restatement Date;
(k) sale of the sale Designated Business; provided that (i) at the time of and after giving effect to such sale, Holdings and the Parent Borrower shall be in pro forma compliance with the financial covenants set forth in Sections 6.12 and 6.13, (ii) at the time of and after giving effect to such sale, no Default or disposition Event of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
Default shall have occurred and be continuing and (liii) the licensing of intellectual property in the ordinary course of business or Net Proceeds thereof shall be used to prepay Term Loans in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. 2.11(c); provided that (x) all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs clause (b), (c), (f), (l), (n) and (p) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (ny) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted herebyby clauses (i) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 and (it being understood that for purposes of paragraph (aj) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries above shall be deemed to constitute for at least 75% cash consideration).
Appears in 1 contract
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory Inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions to the Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Restricted Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment investments permitted by clauses (b), (h), (lj) and (nk) of Section 6.04,;
(e) sale and leaseback transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,;
(g) licensing and cross-licensing arrangements entered into in the ordinary course of business involving any technology or other intellectual property of the Borrower or any Restricted Subsidiary;
(h) (i) dispositions of Permitted Investments for fair market value and (ii) leases and subleases not materially interfering with the ordinary course of business; and
(i) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph clause of this Section 6.05,
(h) exchanges Section, provided that the aggregate fair market value of property for similar replacement property for fair value,
all assets sold, transferred or otherwise disposed of in reliance upon this clause (i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of shall not exceed $20,000,000 during any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business fiscal year of the Borrower or any $75,000,000 during the term of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. this Agreement; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs clauses (b), (c), (f), (l), (ng) and (ph)(ii) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Samples: Senior Secured Term Loan Agreement (Orchard Supply Hardware Stores Corp)
Asset Sales. The Parent Borrower will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Parent Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactionsSubsidiary, except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and other dispositions of (i) inventory in the ordinary course of business and inventory, (ii) used, damaged, obsolete, worn out, negligible used or surplus equipment or property and (iii) Permitted Investments in the ordinary course of business,;
(b) sales, transfers and other dispositions to the Parent Borrower or any Restricted a Subsidiary; provided PROVIDED that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) the sale, transfer or other disposition of the Cambridge Property;
(d) sales, transfers and other dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,;
(de) sales, transfers and other dispositions of property to the extent such property constitutes an investment permitted by clauses (ba), (h), (li) and (nk) of Section 6.04,;
(ef) sale and leaseback transactions permitted by Section 6.06,;
(fg) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,; and
(gh) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary (other than a Borrower) are sold) that are not permitted by any other paragraph clause of this Section 6.05,
Section; PROVIDED that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this clause (h) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of shall not exceed $500,000 during any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business fiscal year of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. provided Parent Borrower; PROVIDED that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs clause (b), (c), (f), (l), (nd) and (pg) above) shall be made for fair value and (other than those permitted by paragraphs clause (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Samples: Credit Agreement (Mac-Gray Corp)
Asset Sales. The Borrower No Loan Party will not, and will not permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions, except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory Inventory in the ordinary course of business business, and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions to the Borrower or any Restricted Subsidiary; provided that any such sales, transfers or dispositions involving a Non-other Loan Party shall be made in compliance with Section 6.09,Party;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,Permitted Investments;
(e) sale and leaseback transactions permitted by Section 6.06,6.6;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,Loan Party;
(g) non-exclusive licenses of intellectual property in the ordinary course of business;
(h) transfer of assets as a contribution to a joint venture so long as such contribution constitutes an Investment permitted by Section 6.4(a)(xvii); provided that the asset so transferred is not part of the Borrowing Base at the time of such contribution;
(i) a sale or other disposition of Accounts in connection with a Permitted Supplier Financing Transaction; and
(j) sales, transfers and other dispositions of assets (other than the sale of Equity Interests that would result in a Restricted Subsidiary unless all Equity Interests Change in such Restricted Subsidiary are soldControl) that are not permitted by any other paragraph part of this Section 6.05,
(h6.5, provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this Section 6.5(i) exchanges shall not exceed $50,000,00075,000,000 during any Fiscal Year of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. KAC; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (bSections 6.5(b), (c), (f), (l), (n6.5(h) and (p6.5(i) above) (i) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (nii) and (p) above) for at least 75% of the consideration therefor shall be in cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood or assets that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually can be readily converted into cash without discount within 6 months following 90 days thereafter, unless, with respect to this clause (ii), (x) such asset is not Collateral and (y) at the applicable time the relevant asset sale, transfer, lease or and other disposition by occurs the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration)Payment Condition is satisfied.
Appears in 1 contract
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions6.03), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions of assets to the Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at excluding sales or dispositions in a discountfactoring arrangement) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment Permitted Investments and other investments permitted by clauses (b), (h), (li) and (nk) of Section 6.04,6.03;
(e) sale Sale and leaseback transactions Leaseback Transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,; and
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph clause of this Section 6.05,
Section, provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (hg) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of shall not exceed $500,000 during any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business fiscal year of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. Borrower; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) above) shall be made for fair value and under this Section 6.05 (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (pf) above) shall be made for fair value and for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Asset Sales. The Borrower will not, and nor will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory Inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions to the Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,6.10;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,
(e) sale and leaseback transactions permitted by Section 6.06,6.07;
(fd) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the any Borrower or any Restricted Subsidiary,; and
(e) sale or other disposition of any interest in real property (and assets affixed thereon or integral to the operation thereof), including by lease or in connection with any sale leaseback transaction permitted hereunder;
(f) sale or disposition of any d.e.m.o. or One Thousand Steps stores (or groups of stores) or the discontinuation of any operations related thereto or the sale or disposition of any assets related thereto;
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,Section, provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (e) shall not exceed $50,000,000 during any fiscal year of the Borrower; and
(h) exchanges sales, transfers and other dispositions of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) Purchased Private Label Accounts; provided that if Availability at the sale time of any such sale, transfer or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the is less than $75,000,000, such sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed on terms and pursuant to constitute cash consideration)documentation reasonably satisfactory to the Administrative Agent in its Permitted Discretion.
Appears in 1 contract
Samples: Credit Agreement (Pacific Sunwear of California Inc)
Asset Sales. The Make any Asset Sales or enter into any agreement to make any Asset Sales, except:
(a) sales or other dispositions of assets that do not constitute Asset Sales;
(b) Asset Sales, the proceeds of which (valued at the principal amount thereof in the case of non-cash proceeds consisting of notes or other debt securities and valued at fair market value in the case of other non-cash proceeds) (i) are less than $5.0 million with respect to any single Asset Sale or series of related Asset Sales and (ii) when aggregated with the proceeds of all other Asset Sales made within the same fiscal year, are less than $15.0 million; provided that (1) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of the Borrower will not(or similar governing body)), (2) no less than 75% thereof shall be paid in cash or Cash Equivalents, and will not permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise3) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests the Net Cash Proceeds thereof shall be applied as required by applicable law Section 2.05(c); provided further that for purposes of clause (2), the Borrower may elect to be treat non-cash consideration from an Asset Sale as cash so long as the amount of such non-cash consideration being held by a Person other than the Borrower a Restricted Subsidiary), nor will and its Subsidiaries (and not previously converted to cash) does not exceed $5.0 million in the aggregate;
(c) Investments made in accordance with Section 7.02;
(d) Dispositions permitted by Sections 7.04 and 7.06 and Liens permitted by Section 7.01;
(e) Asset Sales listed on Schedule 7.05;
(f) Dispositions of Property by the Borrower permit or any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions, except (in each case, whether effected pursuant to a Division or otherwise):
(a) salesSubsidiary; provided that if the transferor is a Subsidiary Guarantor of the Borrower, transfers and dispositions of (i) inventory in the ordinary course of business transferee thereof must be either the Borrower or a Subsidiary Guarantor and (ii) usedto the extent such transaction constitutes an Investment, damaged, obsolete, worn out, negligible or surplus equipment or property in the ordinary course of business,such transaction is permitted by Section 7.02;
(bg) sales, transfers and dispositions to the Borrower or any Restricted SubsidiaryDispositions permitted by Section 7.09; provided that any such sales, transfers or dispositions involving a Non-Loan Party shall be made in compliance with Section 6.09,and
(ch) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,
(d) sales, transfers and dispositions Dispositions of property to the extent that (i) such property constitutes an investment permitted by clauses is exchanged for credit against the purchase price of similar replacement property or (b), (h), (lii) and (n) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property. To the extent the Required Lenders waive the provisions of this Section 6.04,
(e) 7.05 with respect to the sale and leaseback transactions permitted by Section 6.06,
(f) dispositions resulting from of any casualty or other insured damage toCollateral, or any taking under power of eminent domain Collateral is sold as permitted by this Section 7.05, such Collateral (unless sold to Borrower or by condemnation or similar proceeding of, any property or asset a Subsidiary Guarantor) shall be sold free and clear of the Borrower Liens created by the Security Documents, and the Agents shall take all actions they deem appropriate or any Restricted Subsidiary,
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,
(h) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure reasonably requested by the Borrower or any Restricted Subsidiary with respect in order to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) effect the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration)foregoing.
Appears in 1 contract
Samples: Credit Agreement (Carter William Co)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower any Loan Party permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary Loan Party in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions to the Borrower or any Restricted Subsidiary; Loan Party, provided that any such sales, transfers or dispositions involving from a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment investments permitted by clauses (b), (h), (li) and (nk) of Section 6.04,;
(e) sale and leaseback transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the any Borrower or any Restricted Subsidiary,;
(g) sales of Equity Interests in Marketing Alliance Partners; and
(h) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,
Section, provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (h) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of shall not exceed $10,000,000 during any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business fiscal year of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. Borrowers; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (pf) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Samples: Credit Agreement (Aventine Renewable Energy Holdings Inc)
Asset Sales. The Borrower Holdings will not, and will not permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower Holdings or a Restricted Subsidiary), nor will the Borrower Holdings permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower Holdings or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions, except (in each case, whether effected pursuant to a Division or otherwise):
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible or surplus equipment or property in the ordinary course of business,
(b) sales, transfers and dispositions to the Borrower Holdings or any Restricted Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Loan Party shall be made in compliance with Section 6.09,
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,
(e) sale and leaseback transactions permitted by Section 6.06,
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower Holdings or any Restricted Subsidiary,
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,
(h) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower Holdings or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower Holdings or any of its Restricted Subsidiaries, and,
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).and
Appears in 1 contract
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions to the Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Loan Party Subsidiary that is not a Subsidiary Guarantor shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment Investments permitted by clauses (ba), (g), (h), (li), (k) and (nl) of Section 6.04,;
(e) sale and leaseback transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,; and
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,
(h) exchanges of property for similar replacement property for fair value,
Section, provided that each such transaction (i) assets set forth on Schedule 6.05,
is for consideration consisting of at least eighty-five percent (j85%) of cash, (ii) is for not less than fair market value (as determined in good faith by the sale Borrower’s board of directors), (iii) after giving effect to such transaction, no Default or Event of Default shall exist, (iv) together with all other such transactions under this subsection (g) calculated at book value (1) during the immediately preceding twelve-month period, represent the disposition of (x) not greater than twenty percent (20%) of the Borrower’s Consolidated Total Assets at the end of the fiscal year immediately preceding that in which such transaction is proposed to be entered into and (y) in the case of the sale, transfer or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as comprising a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business line of the Borrower or any a Subsidiary, such business line generated net income not greater than twenty percent (20%) of its Restricted Subsidiariesthe Borrower’s Consolidated Net Income for such preceding fiscal year, and
and (p2) during the period from the date hereof to the date of such proposed transaction represents the disposition of (x) not greater than thirty-five percent (35%) of the Borrower’s Consolidated Total Assets at the end of the fiscal year immediately preceding that in which such transaction is proposed to be entered into and (y) in the case of the sale, transfer or other disposition of assets comprising a business line of the Borrower or a Subsidiary, such business line generated net income not greater than thirty-five percent (35%) of the Borrower’s Consolidated Net Income for such preceding fiscal year and (v) the sale of Equity Interests Borrower and the Subsidiaries are in joint ventures compliance, on a pro forma basis reasonably acceptable to the extent required Administrative Agent after giving effect to such transaction (including pro forma adjustments arising out of events which are directly attributable to the sale, transfer or disposition of assets, are factually supportable and are expected to have a continuing impact, in each case as determined on a basis consistent with Article 11 of Regulation S-X of the Securities Act of 1933, as amended, as interpreted by the SEC), with the covenants contained in Section 6.13 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available, as if such transaction had occurred on the first day of each relevant period for testing such compliance and, if the assets sold, transferred or made pursuant to, customary buy/sell arrangements disposed of in such transaction represent the disposition of assets (1) exceeding five percent (5%) of the Borrower’s Consolidated Total Assets as at the end of the fiscal year immediately preceding that in which such transaction is proposed to be entered into or (2) in the ordinary course case of the sale, transfer or other disposition of assets comprising a business between line of the joint venture parties Borrower or a Subsidiary, such business line generated net income comprising greater than five percent (5%) of the Borrower’s Consolidated Net Income for such preceding fiscal year, the Borrower shall have delivered to the Administrative Agent a certificate of a Financial Officer of the Borrower to such effect (and sent forth if the assets sold, transferred or disposed of in joint venture agreements. such transaction represent the disposition of assets (1) exceeding ten percent (10%) of the Borrower’s Consolidated Total Assets as at the end of the fiscal year immediately preceding that in which such transaction is proposed to be entered into or (2) in the case of the sale, transfer or other disposition of assets comprising a business line of the Borrower or a Subsidiary, such business line generated net income comprising greater than ten percent (10%) of the Borrower’s Consolidated Net Income for such preceding fiscal year, such certificate and the supporting calculations shall have been reviewed by Ernst & Young LLP or other independent public accountants of recognized national standing), together with all relevant financial information requested by the Administrative Agent; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (pf) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 7585% cash consideration, plus (consideration or as a trade-in for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration)replacement property.
Appears in 1 contract
Asset Sales. The Neither Holdings nor the Borrower will, nor will not, and will not they permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions to the Borrower or any Restricted a Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) any consignment or similar arrangements for the sale of inventory in the ordinary course of business;
(i) sales, transfers and dispositions of licenses or sublicenses of intellectual property and general intangibles and (ii) licenses, sublicenses, leases or subleases of other property, in the case of both clauses (i) and (ii), in the ordinary course of business and to the extent such property constitutes an investment they do not materially interfere with the business of Holdings, the Borrower and the Subsidiaries;
(f) sales, transfers and dispositions of investments permitted by clauses (b), (h), (lj), (m), (n) and (np) of Section 6.04,;
(eg) sale and leaseback transactions permitted by Section 6.06,;
(fh) dispositions within 360 days after the consummation of a Permitted Acquisition or the Aurora Acquisition, the sale, transfer or disposition of assets acquired in connection with such Permitted Acquisition or the Aurora Acquisition, as applicable, and not required in the operation of the business of the Borrower or any of the Subsidiaries;
(i) Dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,;
(gj) the Disposition of Open Pit Assets, provided that, prior to the Aurora Effective Date, the Net Proceeds therefrom shall be applied to the repayment of Loans in accordance with Section 2.11(c) (without giving effect to the proviso thereof, unless after giving effect to such Disposition and application of the proceeds therefrom, no Default has occurred and is continuing and the Leverage Ratio, on a Pro Forma Basis, as of the end of the most recently ended quarter for which financial statements are available is less than 5.0 to 1.0);
(k) the Disposition of the Omaha Property; and
(l) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all 100% of the Equity Interests in of such Restricted Subsidiary are sold) , transferred or otherwise disposed of), including Asset Swaps, that are not permitted by any other paragraph clause of this Section 6.05,
(h) exchanges Section, provided that the aggregate fair value of property for similar replacement property for fair value,
(i) all assets set forth on Schedule 6.05,
(j) the sale sold, transferred or other disposition otherwise disposed of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
reliance upon this clause (l) shall not exceed $10,000,000 (or, on or after the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(mAurora Effective Date, $20,000,000) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or during any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business fiscal year of the Borrower or any of its Restricted SubsidiariesBorrower, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. provided that (x) all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs clauses (a)(ii), (b), (c), (fd), (l), (ne) and (pi) aboveabove and Asset Swaps) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration (which cash consideration, plus (I) for purposes of clause (a)(i), shall be deemed to include accounts receivable and (II) for all other purposes under this Section 6.05, shall be deemed to include (a) any liabilities of Holdings, the Borrower or any Subsidiary, as shown on the most recent balance sheet of Holdings, the Borrower or any Subsidiary (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of such assets and (b) any securities, notes or other obligations received by Holdings, the Borrower or any Subsidiary from a transferee that are converted into cash within 90 days after such transfer, to the extent of such conversion) and (y) all sales, transfers, leases and other dispositions permitted herebyhereby (other than those permitted by clauses (b) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 and (it being understood that for purposes of paragraph (ai)) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration)made for fair value.
Appears in 1 contract
Asset Sales. The Each Borrower will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the such Borrower permit any of its Restricted Subsidiary Subsidiaries to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactionsSubsidiary, except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) salessales of inventory, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible used or surplus equipment or property and Permitted Investments in the ordinary course of business,;
(b) sales, transfers and dispositions to the a Borrower or any a Restricted Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Loan Party Restricted Subsidiary (other than PTFI) shall be made in compliance with Section 6.09,6.09 and, provided, further, that PTFI will not transfer any significant operating assets, the Contract of Work or any rights thereunder or (except in connection with an Additional Infrastructure Financing or sale and leaseback transaction permitted by Section 6.06) any assets subject to any Lien under any of the Security Documents to any other Person;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) Block B Assets in connection with transactions satisfying the compromise, settlement or collection thereof consistent with past practice,Block B Conditions;
(d) sales, transfers and dispositions any sale of property to Transferred Shares in a Qualifying PTMI/FI Sale Transaction provided that the extent such property constitutes an investment permitted by clauses (bNet Proceeds thereof are applied in accordance with Section 2.10(c), (h), (l) and (n) of Section 6.04,;
(e) sales of assets as part of a sale and leaseback transactions transaction permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage tosale of Equity Interests in PT Kencana and/or PT Kencana Wisata in connection with a PT Kencana Financing, or any taking under power provided the Net Proceeds thereof are applied in accordance with the provisions of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,Section 2.10(c);
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph clause of this Section 6.05,
Section; provided that the cumulative consideration for all assets sold, transferred or otherwise disposed of in reliance upon this clause (hd) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) including the sale or other disposition of Permitted Investments,
(k) the sale or disposition amount of any assets Indebtedness transferred, assigned or property received as assumed in connection with a result sale of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(lEquity Interests) the licensing of intellectual property shall not exceed $100,000,000 in the ordinary course of business or aggregate; provided, further, that the Net Proceeds thereof are applied in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties 2.10; and sent forth in joint venture agreements. provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs clause (b), (c), (f), (l), (n) and (pd) above) shall be made for fair value and for (other than those i) 100% cash consideration, in the case of transactions permitted by paragraphs clause (b), (d), (h), (l), (ne) and (pf) aboveand sales of Permitted Investments and (ii) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount case of $20,000,000 (it being understood that for purposes of paragraph transactions permitted by clauses (a), (c) aboveand (g) (disregarding any amounts of Indebtedness transferred, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out assigned or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition assumed by the Borrower purchaser in such transaction that is not owed to the Borrowers or any of its Restricted Subsidiaries shall be deemed to constitute cash considerationtheir Affiliates).
Appears in 1 contract
Samples: Credit Agreement (Freeport McMoran Copper & Gold Inc)
Asset Sales. The Borrower will notNo Group Member shall Sell any of its property (other than cash) or issue shares of its own Stock, except for the following:
(a) (i) Sales of Cash Equivalents, (ii) Sales of inventory or property that has become obsolete or worn out in the ordinary course of business, (iii) licenses or sublicenses of Intellectual Property in the ordinary course of business, (iv) Sales of inventory and will goods held for sale in the ordinary course of business, (v) Sales or discounts of delinquent accounts receivable in the ordinary course of business, (vi) the incurrence of Liens permitted by Section 8.2, the making of Investments permitted by Section 8.3 and the consummation of any merger, consolidation or amalgamation permitted by Section 8.7 and (vii) Sales of non-core assets acquired in connection with a Permitted Acquisition consummated after the date hereof in an aggregate amount not permit any Restricted Subsidiary to, sell, transfer, to exceed $2,500,000;
(b) (i) a true lease or otherwise dispose sublease of real property not constituting Indebtedness and not entered into as part of a Sale and Leaseback Transaction and (whether effected ii) a Sale of property pursuant to a Division Sale and Leaseback Transaction; provided, however, that the aggregate fair market value (measured at the time of the applicable Sale) of all property covered by any outstanding Sale and Leaseback Transaction consummated at any time after the Closing Date shall not exceed $5,000,000;
(i) any Sale of any property (other than their own Stock or otherwiseStock Equivalents) by any Group Member to any other Group Member to the extent any resulting Investment constitutes a Permitted Investment, (ii) any Restricted Payment by any Group Member permitted pursuant to Section 8.5 and (iii) any distribution by the Borrower of the proceeds of Restricted Payments from any other Group Member to the extent permitted in Section 8.5;
(d) (i) any Sale or issuance by the Borrower of its own Stock, (ii) any Sale or issuance by any Subsidiary of the Borrower of its own Stock to any Group Member, provided, however, that the proportion of such Stock and of each class of such Stock (both on an outstanding and fully-diluted basis) held by the Loan Parties, taken as a whole, does not change as a result of such Sale or issuance and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Subsidiary of the Borrower, any Sale or issuance by such Subsidiary of its own Stock constituting directors’ qualifying shares or nominal holdings;
(e) as long as no Default is continuing or would result therefrom, any Sale of property (other than as part of a Sale and Leaseback Transaction or any Sale or issuance of its own Stock) of any assetGroup Member for fair market value payable in cash upon such Sale; provided, including however, that the aggregate consideration received during any Equity Interest owned by it Fiscal Year for all such Sales shall not exceed $25,000,000;
(other than directors’ qualifying Equity Interests f) Sales of accounts receivable in connection with the collection or Equity Interests required by applicable law to be held by a Person other than compromise thereof in the Borrower a Restricted Subsidiary), nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary ordinary course of business;
(other than g) Sales of property to the Borrower extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or another Restricted Subsidiary in compliance with Section 6.04(ii) involving aggregate payments or consideration for assets having a Fair Market Value in excess the proceeds of $2,500,000 for any individual transaction or series such Sales are promptly applied to the purchase price of related transactionsreplacement property, except (in each case, whether effected pursuant to a Division or otherwise):in the ordinary course of business;
(ah) sales, transfers and dispositions Sales of property among the Loan Parties;
(i) inventory the lapse or abandonment in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible of any registrations or surplus equipment or property applications for registration of any Intellectual Property not otherwise in the ordinary course of business,
(b) sales, transfers and dispositions to the Borrower or any Restricted Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Loan Party shall be made in compliance with Section 6.09,
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,
(e) sale and leaseback transactions permitted by Section 6.06,
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset violation of the Borrower or any Restricted Subsidiary,
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,
(h) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,Loan Documents; and
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition unwinding of any assets Hedging Agreement so long as (i) no Event of Default is continuing or property received would result therefrom and (ii) at the time of any such unwinding, and after giving effect thereto, the Consolidated Leverage Ratio is less than 2.00:1:00 as a result of a foreclosure by the Borrower last day of the most recently ended Fiscal Quarter or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
Fiscal Year (l) the licensing of intellectual property in the ordinary course case of business the fourth Fiscal Quarter) for which Financial Statements have been or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made were required to be delivered pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or 6.1, unless the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases Loan Party party to third persons the Hedging Agreement does not make a cash payment in the ordinary course of business that do not interfere in any material respect connection with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration)unwinding thereof.
Appears in 1 contract
Asset Sales. The Borrower will not, and nor will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower it permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary, except: (and provided, however, that during the Senior Period the Borrower or any Subsidiary may not, sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it, nor will the Borrower permit any Subsidiary to issue any additional Equity Interest in such Subsidiary pursuant to any of the clauses (c), (e), (f) or (j) below (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess sales, transfers and other dispositions of $2,500,000 for any individual transaction or series of related transactions, except (in each case, whether effected pursuant to a Division or otherwiseproperty identified on Schedule 6.05A)):
(a) sales, transfers transfers, leases and other dispositions of (i) inventory in the ordinary course of business and (ii) usedinventory, damaged, obsolete, worn out, negligible used or surplus equipment or property other obsolete assets, Permitted Investments and investments referred to in Section 6.04(h) in the ordinary course of business,;
(b) sales, transfers and dispositions to the Borrower or any Restricted a Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) (i) sales of accounts receivable and related assets by a Foreign Subsidiary pursuant to customary terms whereby recourse and exposure in respect thereof to any Foreign Subsidiary does not exceed at any time $35,000,000 and (ii) sales of accounts receivables and related assets pursuant to the Specified Vendor Receivables Financing;
(d) the creation of Liens permitted by Section 6.02 and dispositions as a result thereof;
(e) sales or transfers that are permitted sale and leaseback transactions pursuant to Section 6.06;
(f) sales and transfers that constitute part of an Acquisition Lease Financing;
(g) Restricted Payments permitted by Section 6.08;
(h) transfers and dispositions constituting investments permitted under Section 6.04;
(i) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,
(d) sales, transfers and other dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,identified on Schedule 6.05; and
(ej) sale so long as no Event of Default shall have occurred and leaseback transactions permitted by Section 6.06,
(f) dispositions resulting from any casualty or other insured damage tothen be continuing, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are soldSubsidiary) that are not permitted by any other paragraph clause of this Section 6.05,
Section; provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this clause (hj) exchanges of property for similar replacement property for fair value,
shall not exceed (i) 15% of the aggregate fair market value of all assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any (determined as of the end of its Restricted Subsidiariesmost recent fiscal year), and
(p) the sale of including any Equity Interests owned by it, during any fiscal year of the Borrower; provided that such amount shall be increased, in joint ventures respect of the fiscal year ending on December 31, 2016, and each fiscal year thereafter by an amount equal to the extent required total unused amount of such permitted sales, transfers and other dispositions for the immediately preceding fiscal year (without giving effect to the amount of any unused permitted sales, transfers and other dispositions that were carried forward to such preceding fiscal year) and (ii) 35% of the aggregate fair market value of all assets of the Borrower as of the Closing Date, including any Equity Interests owned by or made pursuant toit, customary buy/sell arrangements entered into in during the ordinary course term of business between this Agreement subsequent to the joint venture parties and sent forth in joint venture agreements. Closing Date; provided that (x) all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs clauses (b), ) or (c), (f), (l), (n) and (ph) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (ny) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted herebyby clauses (i), (j) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 and (it being understood that for purposes of paragraph (ak) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries above shall be deemed to constitute for at least 75% cash consideration).
Appears in 1 contract
Asset Sales. The Borrower will not, and nor will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary Loan Party to issue any additional Equity Interest in such Restricted Subsidiary Loan Party (other than issuing directors’ qualifying shares and other than issuing Equity Interests to the Borrower or another Restricted Subsidiary Loan Party in compliance with Section 6.046.04(d)) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions, except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers transfers, leases and other dispositions of (i) inventory in the ordinary course of business and inventory, (ii) used, damaged, obsolete, worn out, negligible obsolete or surplus equipment equipment, (iii) property no longer used or property useful in the conduct of the business of the Borrower and the Restricted Subsidiaries and (iv) cash and Cash Equivalents, in each case in the ordinary course of business,;
(b) (x) sales, transfers transfers, leases and other dispositions to the Borrower or any Restricted Subsidiary; provided that any such sales, transfers transfers, leases or other dispositions involving a Non-Restricted Subsidiary that is not a Loan Party shall be made in compliance with Sections 6.04 and 6.09, and (y) to the extent constituting a disposition, Liens permitted by Section 6.09,6.02, transactions permitted by Section 6.03 (other than clauses (iii) and (v) of Section 6.03(a)), Investments permitted by Section 6.04 and Restricted Payments permitted by Section 6.08;
(c) sales, transfers and other dispositions of productsof, services or and discounts with respect to, accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof in the ordinary course of business consistent with past practice,practice and not as part of any accounts receivables financing transaction;
(d) salesleases or subleases entered into in the ordinary course of business, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (b)that they do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, (h), (l) and (n) of Section 6.04,taken as a whole;
(e) sale and leaseback transactions permitted by Section 6.06,licenses or sublicenses of intellectual property in the ordinary course of business, to the extent that they do not materially interfere with the business of the Borrower or any Restricted Subsidiary;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of any of the Borrower or any Restricted Subsidiary,;
(g) dispositions of assets to the extent that (i) such assets are exchanged for credit against the purchase price of similar replacement assets or (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement assets;
(h) sales, transfers transfers, leases and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary Loan Party unless all Equity Interests in such Restricted Subsidiary Loan Party (other than directors’ qualifying shares) are sold) that are not permitted by any other paragraph clause of this Section 6.05,
(h) exchanges Section; provided that no Event of property for similar replacement property for fair value,Default has occurred and is continuing or would result therefrom;
(i) assets set forth on Schedule 6.05,[reserved];
(j) the sale or other any disposition of Permitted Investments,Receivables Facility Assets in connection with a Permitted Receivables Facility;
(k) the sale or disposition unwinding of any Hedging Agreement;
(l) dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy or sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(m) dispositions of assets or property received listed on Schedule 6.05;
(n) dispositions of non-core assets acquired in a Permitted Acquisition; provided that (i) such assets were identified to the Administrative Agent in writing as a result non-core assets within 30 days of a foreclosure by the Borrower or any Restricted Subsidiary time that the applicable Permitted Acquisition was consummated, (ii) such disposition is consummated within one year after the date on which the applicable Permitted Acquisition was consummated and (iii) with respect to any secured Investment or other transfer such Permitted Acquisition, the aggregate fair market value of title with respect to any secured Investment the assets disposed of in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to reliance on this clause (s) of Section 6.04,
(n) surrender or waiver shall not exceed 25% of contract rights or the settlement, release or surrender aggregate consideration paid by the Borrower and its Restricted Subsidiaries in respect of contract, tort or other claims of any kind,such Permitted Acquisition;
(o) leases dedications of, or subleases the granting of easements, rights of way, rights of access and/or similar rights, to third persons in the ordinary course of business any Governmental Authority, utility providers, cable or other communication providers and/or other parties that do would not reasonably be expected to interfere in any material respect with the operations of the Borrower and the Restricted Subsidiaries, taken as a whole; provided that upon reasonable request by the Borrower, the Administrative Agent shall subordinate its Mortgage on such real property to such easement, right of way, right of access or similar agreement in such form as is reasonably satisfactory to the Administrative Agent and the Borrower;
(p) [reserved];
(q) with respect to any leased real property, dispositions to the landlord with respect to such leased real property of improvements made to such leased real property pursuant to customary terms in the ordinary course of business;
(r) any exchange of assets for services or other assets of comparable or greater value or usefulness to the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into Subsidiary in the ordinary course of business; and
(s) the disposition, abandonment, cancellation or lapse of intellectual property which, in the reasonable determination of the Borrower, are not material to the conduct of the business between of the joint venture parties Borrower and sent forth Restricted Subsidiaries, taken as a whole, or are no longer economical to maintain in joint venture agreements. light of their respective use, in the ordinary course of business; provided that (x) all sales, transfers, leases and other dispositions permitted hereby by clause (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) aboveh) shall be made for fair value (provided, that the Borrower and the Restricted Subsidiaries may sell, transfer, lease or otherwise dispose of assets having an aggregate fair value, for any calendar year, of $1,000,000 or less without being subject to the requirements of this clause (other than those permitted by paragraphs (bx), (d), (h), (l), (n) and (py) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted herebyby clause (h) an aggregate additional amount shall be for at least 75% cash consideration payable at the time of non-such sale, transfer or other disposition; provided, further, that (i) any consideration in the form of Cash Equivalents that are disposed of for cash consideration within 30 Business Days after such sale, transfer or other disposition shall be deemed to be cash consideration in an amount equal to the amount of $20,000,000 (it being understood that such cash consideration for purposes of paragraph this proviso, (aii) above, accounts receivable received any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the ordinary course and any property received footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in exchange for usedcash of the Obligations, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following are assumed by the transferee with respect to the applicable sale, transfer, lease or other disposition and for which the Borrower and all the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing shall be deemed to be cash consideration in an amount equal to the liabilities so assumed and (iii) any Designated Non-Cash Consideration received by the Borrower or any such Restricted Subsidiary in respect of its Restricted Subsidiaries such sale, transfer, lease or other disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding, not in excess of the greater of (x) $200,000,000 and (y) 2.50% of Consolidated Total Assets as of the last day of the fiscal quarter of the Borrower most recently ended at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to constitute be cash consideration). For purposes of determining compliance with this covenant, (A) a disposition need not be permitted solely by reference to one category of permitted disposition (or any portion thereof) described in the above clauses of this Section 6.05 but may be permitted in part under any combination thereof and (B) in the event that a disposition (or any portion thereof) meets the criteria of one or more of the categories of permitted disposition (or any portion thereof) described in the above clauses of this Section 6.05, the Borrower may, in its sole discretion, classify (but, for the avoidance of doubt, not subsequently reclassify) such permitted disposition (or any portion thereof) in any manner that complies with this Section 6.05, and at the time of such classification the Borrower will be entitled to only include the amount and type of such disposition (or any portion thereof) in any of the categories of permitted disposition (or any portion thereof) described in the above clauses of this Section 6.05 in a manner that complies with this Section 6.05.
Appears in 1 contract
Samples: Credit Agreement (Chemours Co)
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary of the Subsidiaries to, sell, transfer, lease or otherwise dispose (whether effected including pursuant to a Division or otherwisemerger) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)equity securities, nor will the Borrower permit any Restricted Subsidiary of the Subsidiaries to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess shares of $2,500,000 for any individual transaction or series of related transactionsits equity securities, except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers transfers, leases and other dispositions of (i) inventory in the ordinary course of business and (ii) usedinventory, damaged, obsolete, worn out, negligible used or surplus equipment or property and Permitted Investments, in each case in the ordinary course of business,;
(b) sales, transfers transfers, leases and other dispositions made by the Borrower to any Domestic Subsidiary and made by any Domestic Subsidiary to the Borrower or any Restricted other Domestic Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Loan Party shall be made in compliance with Section 6.09,;
(c) if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, other sales, transfers transfers, leases and other - 68 - 74 dispositions of productsassets, services provided that (i) the assets sold, transferred, leased or accounts receivable otherwise disposed of shall have (including at a discountx) contributed less than 15% of Consolidated EBITDA during the immediately preceding four fiscal quarters and (y) represent less than 15% of Consolidated Total Assets as of the most recently completed fiscal quarter, (ii) the aggregate fair market value of all assets, sold, transferred, leased or otherwise disposed of in connection with the compromise, settlement or collection thereof consistent with past practice,
reliance upon this subsection (d) salesshall not exceed 15% of Consolidated Total Assets as of the most recently completed fiscal quarter, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (niii) of Section 6.04,
(e) sale and leaseback transactions permitted by Section 6.06,
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,
(h) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. provided that all sales, transfers, leases and other dispositions permitted hereby by this subsection (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) aboved) shall be made for fair value and solely for cash consideration;
(d) sales in respect of sale and leaseback transactions to the extent permitted by Section 7.6; and
(e) if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) sales of receivables in respect of 12b-1 Fees and Contingent Deferred Sales Commissions, provided that any Indebtedness incurred in connection with such receivables shall be permitted by Section 7.1(a)(xiv) and (ii) sales of receivables (other than those receivables described in clause (i) above) in connection with a Securitization thereof, provided that (x) any Indebtedness incurred in connection with such receivables shall be permitted by paragraphs (b), (d), (h), (l), (nSection 7.1(a)(xv) and (py) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of such receivables sold in any period of 12 consecutive months shall not exceed $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration)100,000,000.
Appears in 1 contract
Samples: Credit Agreement (Bisys Group Inc)
Asset Sales. The Borrower will not, and will not permit any Restricted Material Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional common Equity Interest in such Restricted Subsidiary (other than issuing directors' qualifying shares and other than issuing Equity Interests to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers transfers, leases and other dispositions of (i) inventory in the ordinary course of business and or (ii) used, damaged, obsolete, worn out, negligible or surplus equipment or property of any assets in the ordinary course exchange for replacement assets of business,substantially similar type and value;
(b) sales, transfers transfers, leases and other dispositions to the Borrower or any Restricted a Subsidiary; , provided that any such sales, transfers transfers, leases or other dispositions outside the ordinary course of business involving a Non-Loan Party the Borrower and any Subsidiary shall be made in compliance with Section 6.09,;
(c) sales, transfers and other dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,;
(d) sales, transfers transfers, leases and other dispositions of property to that are (i) investments received in connection with the extent bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business, (ii) investments of any Person existing at the time such property constitutes Person becomes a Subsidiary or consolidates or merges with the Borrower or any Subsidiary (including in connection with an investment acquisition) so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such consolidation or merger or (iii) another asset received as consideration for the disposition of any asset permitted by clauses this Section (bin each case, other than Equity Interests in a Subsidiary, unless all Equity Interests in such Subsidiary are sold), (h), (l) and (n) of Section 6.04,;
(e) sale and leaseback transactions permitted by Section 6.06,;
(f) leases entered into in the ordinary course of business, to the extent that they do not materially interfere with the business of the Borrower or any Subsidiary;
(g) sales, transfers, licenses or sublicenses of intellectual property in the ordinary course of business, to the extent that they do not materially interfere with the business of the Borrower or any Subsidiary;
(h) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,;
(gi) sales, transfers and other dispositions of accounts receivable, other rights to payment, and interests therein pursuant to Securitization Transactions;
(j) [reserved]; and
(k) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph clause of this Section 6.05,
(h) exchanges Section, provided that the aggregate fair market value of property for similar replacement property for fair value,
(i) all assets set forth on Schedule 6.05,
(j) sold, transferred or otherwise disposed of after the sale or other disposition of Permitted Investments,
Effective Date in reliance upon this clause (k) the sale or disposition of shall not exceed $250,000,000 during any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business fiscal year of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration)Borrower.
Appears in 1 contract
Samples: Credit Agreement (Usg Corp)
Asset Sales. The Neither Holdings nor the Borrower will, nor will not, and will not they permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any assetasset (other than assets sold, transferred, leased or otherwise disposed of in a single transaction or a series of related transactions with a fair market value of $25,000,000 or less), including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will Holdings or the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares and other than issuing Equity Interests to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactionsSubsidiary), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a1) sales, transfers transfers, leases and other dispositions of (i) inventory in the ordinary course of business and inventory, (ii) used, obsolete, damaged, obsolete, worn out, negligible out or surplus equipment equipment, (iii) property no longer used or, in the reasonable business judgment of Holdings, the Borrower or property a Restricted Subsidiary, no longer useful in the conduct of the business of the Borrower or the Restricted Subsidiary (including Intellectual Property), (iv) immaterial assets and (v) cash and Permitted Investments, in each case in the ordinary course of business,;
(b2) sales, transfers transfers, leases and other dispositions to the Borrower or any a Restricted Subsidiary; provided that any such sales, transfers transfers, leases or other dispositions involving a Non-Restricted Subsidiary that is not a Loan Party shall shall, to the extent applicable, be made in compliance with Section Sections 6.04 and 6.09,;
(c3) sales, transfers and other dispositions or forgiveness of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,not as part of any accounts receivables financing transaction (including sales to factors and other third parties);
(d4) (i) sales, transfers transfers, leases and other dispositions of property assets to the extent that such property constitutes assets constitute an investment permitted by clauses clause (b), (hj), (l) and or (n) of Section 6.04,
6.04 or another asset received as consideration for the disposition of any asset permitted by this Section (ein each case, other than Equity Interests in a Restricted Subsidiary, unless all Equity Interests in such Restricted Subsidiary (other than directors’ qualifying shares) sale are sold) and leaseback transactions (ii) sales, transfers, and other dispositions of the Equity Interests of a Restricted Subsidiary by the Borrower or a Restricted Subsidiary to the extent such sale, transfer or other disposition would be permissible as an Investment in a Restricted Subsidiary permitted by Section 6.06,6.04(e) or (u);
(f5) leases or subleases entered into in the ordinary course of business, to the extent that they do not materially interfere with the business of Holdings, the Borrower or any Restricted Subsidiary;
(6) non-exclusive licenses or sublicenses of IP Rights granted in the ordinary course of business or other licenses or sublicenses of IP Rights granted in the ordinary course of business that do not materially interfere with the business of Holdings, the Borrower or any Restricted Subsidiary;
(7) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, and transfers of property arising from foreclosure or similar action with regard to, any property or asset of Holdings, the Borrower or any Restricted Subsidiary,;
(g8) dispositions of assets to the extent that (i) such assets are exchanged for credit against the purchase price of similar replacement assets or (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement assets;
(9) dispositions permitted by Section 6.08;
(10) dispositions set forth on Schedule 6.05;
(11) sales, transfers transfers, leases and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph clause of this Section 6.05,Section; provided that no Event of Default has occurred and is continuing or would result therefrom;
(h12) exchanges sales, transfers or other dispositions of property for similar replacement property for fair value,accounts receivable in connection with Permitted Receivables Facilities;
(i13) assets set forth on Schedule 6.05,
(j) the sale sales, transfers or other disposition of Permitted Investments,
(k) the sale or disposition dispositions of any assets or property received as a result of a foreclosure by the Borrower or (including Equity Interests) (A) acquired in connection with any Restricted Subsidiary with respect to any secured Investment acquisition or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of investment permitted under Section 6.04,
(n) surrender , which assets are not used or waiver of contract rights useful to the core or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the principal business of the Borrower or and the Restricted Subsidiaries and/or (B) made to obtain the approval of any of its Restricted Subsidiaries, andapplicable antitrust authority in connection with an acquisition permitted under Section 6.04;
(p14) the sale sales, transfers or other dispositions of Equity Interests Investments in joint ventures to the extent required by by, or made pursuant to, to customary buy/sell arrangements entered into in the ordinary course of business between between, the joint venture parties and sent set forth in joint venture agreements. arrangements and similar binding arrangements; and
(15) sales, transfers or other dispositions pursuant to any sale and leaseback transactions permitted under Section 6.06(b); provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs clauses (a)(iii), (a)(iv) and (b), (c), (f), (l), (n) and (p) above) for a purchase price in excess of $25,000,000 shall be made for fair value (as determined in good faith by the Borrower), and at least 75% of the consideration from all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs clause (b), (d), (g) or (h)) since the Amendment and Restatement Effective Date, on a cumulative basis, is in the form of cash or Permitted Investments; provided further that (l)i) any consideration in the form of Permitted Investments that are disposed of for cash consideration within 30 Business Days after such sale, (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and transfer or other dispositions permitted hereby) an aggregate additional amount of non-disposition shall be deemed to be cash consideration in an amount equal to the amount of $20,000,000 (it being understood that such cash consideration for purposes of paragraph this proviso, (aii) above, accounts receivable received any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the ordinary course and any property received footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in exchange for usedcash of the Obligations, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following are assumed by the transferee with respect to the applicable sale, transfer, lease or other disposition and for which the Borrower and all the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing shall be deemed to be cash consideration in an amount equal to the liabilities so assumed and (iii) any Designated Non-Cash Consideration received by the Borrower or any such Subsidiary in respect of its Restricted Subsidiaries such sale, transfer, lease or other disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding, not in excess of $45,000,000 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 at the time received and without giving effect to subsequent changes in value, shall be deemed to constitute be cash consideration).
Appears in 1 contract
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower Company permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower Company or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions6.04 (other than Section 6.04(m)), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory Inventory and other assets in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,, or of property no longer used or useful in the conduct of the business of the Company and its Subsidiaries;
(b) sales, transfers and dispositions to the Borrower Company or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving to a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment (i) investments permitted by clauses (ba), (h), (li), (j) and (np) of Section 6.04,6.04 and (ii) other investments to the extent required by or made pursuant to customary buy/sell arrangements made in the ordinary course of business between the parties to agreements related thereto;
(e) sale Sale and leaseback Lease-Back transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower Company or any Restricted Subsidiary,;
(g) sales, transfers and other dispositions of Accounts, receivables and residual interests (excluding in any case Credit Card Processor Accounts and proceeds thereof) in connection with the HSBC Arrangements or any Permitted Replacement Credit Card Program;
(h) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary owned by a Loan Party are sold) that are not permitted by any other paragraph of this Section 6.05,
Section, provided that (i) the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (h) exchanges (other than in respect of property for similar replacement property for fair value,the sale, transfer or other disposition of the Company’s interest in any Unrestricted Subsidiary that was an Unrestricted Subsidiary as of the Effective Date), shall not exceed $50,000,000 during any fiscal year of the Company or $250,000,000 in the aggregate after the Effective Date and (ii) after giving effect to such sale, transfer or disposition (A) no Event of Default shall exist or be continuing and (B) the Company shall be in compliance with Section 2.11(b);
(i) assets set forth on Schedule 6.05,sales, transfer and dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement property;
(j) the sale or other disposition of Permitted Investments,sales, transfers and dispositions permitted by Sections 6.03 and 6.08 and Liens permitted by Section 6.02;
(k) the sale leases, subleases, space leases, licenses or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment sublicenses, in default,
(l) the licensing of intellectual property each case in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that and which do not materially interfere in any material respect with the business of Holdings, the Borrower or any of Company and its Restricted Subsidiaries, ; and
(pl) the sale of Equity Interests in joint ventures to the extent required by or made pursuant tosales, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties transfers and sent forth in joint venture agreements. dispositions listed on Schedule 6.05; provided that (i) all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (a)(ii), (b), (c), (f), (lg), (ni), (j) and (pk) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus and (for all ii) as a condition to any Non-Ordinary Course Asset Disposition, the Company shall deliver to the Agent a Non-Ordinary Course Borrowing Base Certificate as of the date of consummation of such salesNon-Ordinary Course Asset Disposition and, transfersif required, leases shall comply with Section 2.11(b) and as of the date of any such disposition and after giving effect thereto, no Event of Default exists or is continuing. To the extent any Collateral is disposed of as expressly permitted by this Section 6.05 to any Person other dispositions permitted hereby) an aggregate additional amount than Holdings, the Company or any Subsidiary, such Collateral shall be sold free and clear of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition Liens created by the Borrower or any of its Restricted Subsidiaries Loan Documents, and the Agent shall be authorized to take any actions deemed appropriate in order to constitute cash consideration)effect the foregoing.
Appears in 1 contract
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary of the Subsidiaries to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the any Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the another Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) the sales, transfers, leases or dispositions of assets described in Schedule 6.05;
(b) sales, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(bc) sales, transfers and dispositions to the any Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall (i) be made in compliance with Section 6.09,
6.09 and (cii) salesnot have an aggregate fair market value, transfers and dispositions when added to the fair market value of productsall the assets sold, services transferred or accounts receivable disposed of pursuant to paragraph (including at a discounth) in connection with below, of more than $10,000,000 during any fiscal year of the compromise, settlement or collection thereof consistent with past practice,Borrowers;
(d) sales, transfers and dispositions of property to accounts receivable in connection with the extent such property constitutes an investment compromise, settlement or collection thereof;
(e) sales, transfers and dispositions of Investments permitted by clauses paragraphs (bc)(ii), (h), (l) and (ni) of Section 6.04,6.04 and the proviso to Section 6.04(d);
(ef) sale and leaseback transactions permitted by Section 6.06,;
(fg) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the any Borrower or any Restricted Subsidiary,; Table of Contents
(gh) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,
Section, provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (h) exchanges and pursuant to paragraph (c) to Subsidiaries that are not Loan Parties shall not exceed $10,000,000 during any fiscal year of property for similar replacement property for fair value,the Borrowers;
(i) assets set forth on Schedule 6.05,Restricted Payments permitted by Section 6.08; and
(j) the sale or other disposition dispositions of cash and Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect is consistent with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. past practices; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (bc) (to the extent that the applicable transaction is solely among Loan Parties), (c), (f), (l), (ng) and (pi) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and business, (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,, (iii) the abandonment or other disposition of immaterial intellectual property that is, in the reasonable judgment of the Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Borrower and its Subsidiaries taken as a whole and (iv) cash in connection with transactions not prohibited by the terms of this Agreement;
(b) sales, transfers and dispositions to the Borrower any Loan Party or any Restricted Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section Sections 6.04 and 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment Permitted Investments and other investments permitted by clauses (b), (h), (li) and (nk) of Section 6.04,;
(e) sale and leaseback transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,;
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,
(h) exchanges of property for similar replacement property for fair value,
Section; provided that (i) the aggregate fair market value of all assets set forth on Schedule 6.05,
sold, transferred or otherwise disposed of in reliance upon this paragraph (jg) shall not exceed the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer greater of (ax) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) $25,000,00020,000,000 and (py) above52.5% of Consolidated Total Assets (at the time made) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount during the term of non-cash consideration in this Agreementafter the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).Amendment No. 2
Appears in 1 contract
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower Company permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower Company or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions6.04 (other than Section 6.04(m)), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory Inventory and other assets in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,, or of property no longer used or useful in the conduct of the business of the Company and its Subsidiaries;
(b) sales, transfers and dispositions to the Borrower Company or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving to a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment (i) investments permitted by clauses (ba), (h), (li), (j) and (np) of Section 6.04,6.04 and (ii) other investments to the extent required by or made pursuant to customary buy/sell arrangements made in the ordinary course of business between the parties to agreements related thereto;
(e) sale Sale and leaseback Lease-Back transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower Company or any Restricted Subsidiary,;
(g) sales, transfers and other dispositions of Accounts, receivables and residual interests (excluding in any case Credit Card Processor Accounts and proceeds thereof) in connection with the HSBC Arrangements or any Permitted Replacement Credit Card Program;
(h) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary owned by a Loan Party are sold) that are not permitted by any other paragraph of this Section 6.05,
Section, provided that (i) the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (h) exchanges (other than in respect of property for similar replacement property for fair value,the sale, transfer or other disposition of the Company’s interest in any Unrestricted Subsidiary that was an Unrestricted Subsidiary as of the Effective Date), shall not exceed $50,000,000 during any fiscal year of the Company or $250,000,000 in the aggregate after the Second Amended Effective Date and (ii) after giving effect to such sale, transfer or disposition (A) no Event of Default shall exist or be continuing and (B) the Company shall be in compliance with Section 2.11(b);
(i) assets set forth on Schedule 6.05,sales, transfer and dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement property;
(j) the sale or other disposition of Permitted Investments,sales, transfers and dispositions permitted by Sections 6.03 and 6.08 and Liens permitted by Section 6.02;
(k) the sale leases, subleases, space leases, licenses or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment sublicenses, in default,
(l) the licensing of intellectual property each case in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that and which do not materially interfere in any material respect with the business of Holdings, the Borrower or any of Company and its Restricted Subsidiaries, ; and
(pl) the sale of Equity Interests in joint ventures to the extent required by or made pursuant tosales, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties transfers and sent forth in joint venture agreements. dispositions listed on Schedule 6.05; provided that (i) all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (a)(ii), (b), (c), (f), (lg), (ni), (j) and (pk) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus and (for all ii) as a condition to any Non-Ordinary Course Asset Disposition, the Company shall deliver to the Agent a Non-Ordinary Course Borrowing Base Certificate as of the date of consummation of such salesNon-Ordinary Course Asset Disposition and, transfersif required, leases shall comply with Section 2.11(b) and as of the date of any such disposition and after giving effect thereto, no Event of Default exists or is continuing. To the extent any Collateral is disposed of as expressly permitted by this Section 6.05 to any Person other dispositions permitted hereby) an aggregate additional amount than Holdings, the Company or any Subsidiary, such Collateral shall be sold free and clear of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition Liens created by the Borrower or any of its Restricted Subsidiaries Loan Documents, and the Agent shall be authorized to take any actions deemed appropriate in order to constitute cash consideration)effect the foregoing.
Appears in 1 contract
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any assetProperty, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower Borrowers permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the a Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions6.4), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions (i) to the any US Borrower, (ii) to any Canadian Borrower by any other Canadian Loan Party, or (iii) to any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving from a Non-US Loan Party to any Canadian Subsidiary or a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,6.9;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to Permitted Investments in the extent such property constitutes an investment ordinary course of business and investments permitted by clauses (b), (h), (lSection 6.4(i) and (n) of Section 6.04,6.4(m);
(e) sale and leaseback transactions permitted by Section 6.06,6.6;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the any Borrower or any Restricted Subsidiary,;
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section, provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this Section 6.05,6.5(g) shall not exceed (i) $15,000,000 during any fiscal year of the Company and (ii) $75,000,000 during the term of this Agreement; and
(h) exchanges Permitted Fixed Asset Dispositions of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) Real Property, together with fixtures thereon, or Equipment so long as at the sale or other disposition of Permitted Investments,
(k) the sale or disposition time of any assets or property received as a result such sale and immediately after giving effect thereto no Event of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties Default shall have occurred and sent forth in joint venture agreements. be continuing; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (nSection 6.5(b) and (pSection 6.5(f) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% only cash consideration, plus (provided, that, sale and leaseback transactions permitted under Section 6.5(h) and Section 6.6 shall be made for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in an amount not less than 85% of the amount fair value of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out such fixed or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration)capital asset.
Appears in 1 contract
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory Inventory in the ordinary course of business, (ii) used, obsolete, worn out or surplus Equipment or property in the ordinary course of business, (iii) property no longer used or useful to the business of the Loan Parties and their respective Subsidiaries in the ordinary course of business and (iiiv) used, damaged, obsolete, worn out, negligible or surplus equipment or real property in to the ordinary course extent that (A) such property is exchanged for credit against the purchase price of business,similar replacement property or (B) the proceeds of such sale, transfer or disposition are reasonably promptly applied to the purchase price of such replacement property;
(b) sales, transfers and dispositions of assets to the Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) Accounts in connection with the compromise, settlement or collection thereof consistent with past practice,
(d) including, without limitation, sales, transfers and dispositions of property Accounts in connection with supply chain financing on terms and conditions acceptable to the extent such property constitutes an investment permitted by clauses (bAdministrative Agent in its sole discretion), (h), (l) and (n) of Section 6.04,;
(ed) sale Sale and leaseback transactions Leaseback Transactions permitted by Section 6.06,;
(fe) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,;
(f) the licensing, on a non-exclusive basis, of patents, trademarks, copyrights, and other intellectual property rights in the ordinary course of business;
(g) the granting of any Lien permitted under Section 6.02;
(h) sales, transfers and dispositions to the extent constituting investments permitted under Section 6.04; and
(i) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph clause of this Section 6.05,
Section, provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (hg) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of shall not exceed $2,000,000 during any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business fiscal year of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. Borrower; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (fe), (l), (ng) and (ph) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Samples: Amendment and Restatement Agreement (TimkenSteel Corp)
Asset Sales. The Borrower Borrowers will not, and will not permit the Parent or any Restricted Subsidiary of the Subsidiaries to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests any such sale, transfer, lease or Equity Interests required by applicable law to be held by a Person other than disposition resulting from any casualty or condemnation of any assets of the Borrower a Restricted SubsidiaryParent or any of the Subsidiaries), nor will the Borrower Borrowers permit the Parent or any Restricted Subsidiary of the Subsidiaries to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactionsSubsidiary, except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) salessales of inventory, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible used or surplus equipment or tangible property and Permitted Investments in the ordinary course of business,;
(b) sales, transfers transfers, issuances and dispositions to the Borrower Parent or any Restricted a Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,6.10;
(c) sales, transfers leases and dispositions licenses entered into in the ordinary course of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,business;
(d) sales, transfers and dispositions sales in connection with sale-leasebacks permitted under Section 6.07;
(e) sales of property investments referred to the extent such property constitutes an investment permitted by in clauses (b), (hf), (lj) and (nk) of Section 6.04,
(e) sale and leaseback transactions permitted by Section 6.06,6.05;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,
(g) sales, transfers and other dispositions of assets (other than Equity Interests in of a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are soldSubsidiary) that are not permitted by any other paragraph clause of this Section; provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this clause (f) shall not exceed (i) $10,000,000 in the aggregate in any fiscal year of the Parent or (ii) $50,000,000 in the aggregate during the term of this Agreement;
(g) transfers and dispositions constituting investments permitted under Section 6.05,; and
(h) exchanges sales, transfers and dispositions of property for similar replacement property for fair value,
(i) the assets set forth on in Schedule 6.05,
(j) 6.06; provided that the sale or other disposition Administrative Borrower provides the Administrative Agent with written notice of Permitted Investments,
(k) the sale any such sale, transfer or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other not less than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures five Business Days prior to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. consummation thereof; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) above) shall be made for an amount not less than fair value and (other than as determined in good faith by the Board of Directors of the Parent), or, in the case of clause (d) above, for an amount, if less, equal to the aggregate cost expended for the property that is the subject of such sale-leaseback (except that those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph clause (a) above, accounts receivable received above shall be made on terms that are customary in the ordinary course course) and any property received for consideration in exchange for usedcash. For purposes of this Section 6.06, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months the following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute be cash: securities received by the Parent or any Subsidiary from the transferee that are immediately convertible into cash consideration)without breach of their terms or the agreement pursuant to which they were purchased and that are promptly converted by the Parent or such Subsidiary into cash.
Appears in 1 contract
Samples: Fixed Asset Credit Agreement (Pliant Corpororation)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Holdings or any Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the another Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions to the any Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment Permitted Investments and other investments permitted by clauses (bi), (h), (lj) and (nl) of Section 6.04,;
(e) sale and leaseback transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the any Borrower or any Restricted Subsidiary,; and
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,of up to the sum of (i) $50,000,000 in the aggregate and (ii) $5,000,000 in any rolling twelve month period
(h) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the salesales, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business transfers and dispositions of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. Specified Properties; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (pf) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Asset Sales. The None of Holdings, the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower will, nor will not, and will not they permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower they permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactionsSubsidiary, except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers transfers, leases and other dispositions of (i) inventory in the ordinary course of business and (ii) usedinventory, damaged, obsolete, worn out, negligible used or surplus equipment or property equipment, Permitted Investments and Investments referred to in Section 6.04(i) in the ordinary course of business,;
(b) sales, transfers and dispositions to the Parent Borrower or any Restricted a Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Domestic Loan Party shall be made in compliance with Section 6.09,;
(c) the Saturn Sale or the disposition of Equity Interests in the Saturn Subsidiary in lieu thereof and the Asset Dropdown;
(d) sales of accounts receivables and related assets pursuant to the Permitted Receivables Financing;
(e) the creation of Liens permitted by Section 6.02 and dispositions as a result thereof;
(f) sales or transfers that are permitted sale and leaseback transactions pursuant to Section 6.06(a);
(g) sales and transfers that constitute part of an Acquisition Lease Financing;
(h) Restricted Payments permitted by Section 6.08;
(i) transfers and dispositions constituting investments permitted under Section 6.04;
(j) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,
(d) sales, transfers and other dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,identified on Schedule 6.05; and
(e) sale and leaseback transactions permitted by Section 6.06,
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,
(gk) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are soldSubsidiary) that are not permitted by any other paragraph clause of this Section 6.05,
(h) exchanges Section; provided that the aggregate fair market value of property for similar replacement property for fair value,
(i) all assets set forth on Schedule 6.05,
(j) the sale sold, transferred or other disposition otherwise disposed of Permitted Investments,
in reliance upon this clause (k) shall not exceed $15,000,000 during any fiscal year of the sale or disposition Parent Borrower; provided that such amount shall be increased, in respect of the fiscal year ending on December 31, 2002, and each fiscal year thereafter by an amount equal to the total unused amount of such permitted sales, transfers and other dispositions for the immediately preceding fiscal year (without giving effect to the amount of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect unused permitted sales, transfers and other dispositions that were carried forward to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. such preceding fiscal year); provided that (x) all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs clause (b), (c), (f), (l), (n) and (p) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (ny) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted herebyby clauses (j) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 and (it being understood that for purposes of paragraph (ak) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries above shall be deemed to constitute for at least 85% cash consideration).
Appears in 1 contract
Samples: Credit Agreement (Mascotech Inc)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Domestic Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the any Borrower permit any Restricted Domestic Subsidiary to issue any additional Equity Interest in such Restricted Domestic Subsidiary (other than to the another Borrower or another Restricted Domestic Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory Inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment Equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions of assets to the any Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) Accounts in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment Permitted Investments and other investments permitted by clauses (b), (h), (li) and (nk) of Section 6.04,;
(e) sale Sale and leaseback transactions Leaseback Transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the any Borrower or any Restricted Subsidiary,;
(g) granting of Liens to the extent permitted under Section 6.02;
(h) transfer, abandonment or allowance to lapse of intellectual property that is immaterial or no longer used in or necessary for the conduct of the business; and
(i) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph clause of this Section 6.05,
(h) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary Section, provided that with respect to any secured Investment assets sold, transferred or other transfer otherwise disposed of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), reliance upon this paragraph (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all the Payment Condition shall be satisfied after giving effect to any such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease transfer or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration)disposition.
Appears in 1 contract
Asset Sales. The Parent Borrower will not, and will not permit any Restricted Subsidiary of the Subsidiaries to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests any such sale, transfer, lease or Equity Interests required by applicable law to be held by a Person other than disposition resulting from any casualty or condemnation of any assets of the Parent Borrower a Restricted Subsidiaryor any of the Subsidiaries), nor will the Parent Borrower permit any Restricted Subsidiary of the Subsidiaries to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactionsSubsidiary, except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) salessales of inventory, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible used or surplus equipment or tangible property and Permitted Investments in the ordinary course of business,;
(b) sales, transfers transfers, issuances and dispositions to the Parent Borrower or any Restricted a Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,6.10;
(c) sales, transfers leases and dispositions licenses entered into in the ordinary course of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,business;
(d) sales, transfers and dispositions sales in connection with sale-leasebacks permitted under Section 6.07;
(e) sales of property investments referred to the extent such property constitutes an investment permitted by in clauses (b), (f), (h), (l) and (nm) of Section 6.04,
(e) sale and leaseback transactions permitted by Section 6.06,6.05;
(f) sales, transfers and dispositions resulting from of assets (other than Equity Interests of a Subsidiary) that are not permitted by any casualty other clause of this Section; provided that the aggregate fair market value of all assets sold, transferred or other insured damage tootherwise disposed of in reliance upon this clause (f) shall not, or any taking under power in the aggregate, exceed $5,000,000 during the term of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,this Agreement;
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,Foreign Assets;
(h) exchanges of property for similar replacement property for fair value,transfers and dispositions constituting investments permitted under Section 6.05; and
(i) sales, transfers and dispositions of the assets set forth on in Schedule 6.05,
(j) 6.06; provided that the sale or other disposition Parent Borrower provides the Administrative Agent, the Collateral Agent and the Co-Collateral Agent with written notice of Permitted Investments,
(k) the sale any such sale, transfer or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other not less than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures five Business Days prior to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. consummation thereof; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those among Loan Parties permitted by paragraphs clause (b), (c), (f), (l), (n) and (p) above) shall be made for an amount not less than fair value and (other than as determined in good faith by the Board of Directors of the Parent Borrower), or, in the case of clause (d) above, for an amount, if less, equal to the aggregate cost expended for the property that is the subject of such sale-leaseback (except that those permitted by paragraphs clause (b), (d), (h), (l), (na) above shall be made on terms that are customary in the ordinary course) and (p) above) for consideration at least 75% cash considerationof which is (i) cash, plus (for all such sales, transfers, leases and other dispositions permitted herebyii) an aggregate additional amount of non-cash consideration except in the amount case of $20,000,000 dispositions pursuant to clause (it being understood b) above that for purposes of paragraph (a) aboveare not among Loan Parties, accounts receivable received in the ordinary course and form of properties or assets to be owned by the Parent Borrower or any property received other Loan Party for use in exchange for useda business permitted by this Agreement or (iii) except in the case of dispositions pursuant to clause (b) above that are not among Loan Parties, obsoletevoting Equity Interests in one or more Persons engaged in a Permitted Business that are or are to become Wholly Owned Subsidiaries that will be Loan Parties in connection with such transaction (provided that, worn out or surplus equipment or property and (A) in the case of clause (ii), in the event of any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition of First-Priority Collateral, the assets received in respect of such First-Priority Collateral shall be First-Priority Assets that become First-Priority Collateral, (B) in the case of clause (iii), in the event such Equity Interests of such Person are received in respect of any sale, transfer, lease or other disposition of First-Priority Collateral, such Person owns First-Priority Assets that become First-Priority Collateral with a fair market value that is equal to or greater than (1) 75% of the fair market value of the First-Priority Collateral that is the subject of such sale, transfer, lease or disposition, minus (2) the fair market value of any consideration received by any Loan Party pursuant to clauses (i) and (ii) above and (C) in the Borrower or any case of its Restricted Subsidiaries clauses (ii) and (iii), the applicable transaction involves a Permitted Acquisition). For purposes of this Section 6.06, the following shall be deemed to constitute be cash: (a) the assumption of any liabilities of the Parent Borrower or any Subsidiary with respect to, and the release of the Parent Borrower or such Subsidiary from all liability in respect of, any Indebtedness of the Parent Borrower or the Subsidiaries permitted hereunder (in the amount of such Indebtedness) in connection with a sale, transfer, lease or other disposition of Second-Priority Collateral permitted under Section 6.06 and (b) securities received by the Parent Borrower or any Subsidiary from the transferee that are immediately convertible into cash consideration)without breach of their terms or the agreement pursuant to which they were purchased and that are promptly converted by the Parent Borrower or such Subsidiary into cash. For purposes of this Section 6.06 and for so long as any Senior First Lien Notes that are secured by a first-priority Lien on the Second-Priority Collateral remain outstanding, (a) any sale, transfer, lease or other disposition of the Equity Interests of any Loan Party that owns assets constituting First-Priority Collateral or Second-Priority Collateral shall be deemed to be a sale, transfer, lease or disposition of such First-Priority Collateral or Second-Priority Collateral, (b) any sale, transfer, lease or other disposition of Equity Interests of a Loan Party that owns both First-Priority Collateral and Second-Priority Collateral shall be deemed to be a separate sale, transfer, lease or disposition of such First-Priority Collateral and such Second-Priority Collateral) and (c) the proceeds received by the Parent Borrower or any Subsidiary in respect of any such sale, transfer, lease or disposition referred to in clause (b) above (or any sale, transfer, lease or other disposition of assets (other than those described in clause (b) above) including both First-Priority Collateral and Second-Priority Collateral without allocating the purchase price between First-Priority Collateral and Second-Priority Collateral) shall be allocated to the First-Priority Collateral and the Second-Priority Collateral pursuant to the terms of the Intercreditor Agreement.
Appears in 1 contract
Samples: Credit Agreement (Pliant Corp)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) Dispose of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the any Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the another Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory leases of Compression Units in the ordinary course of business and business, (ii) Dispositions of used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,, and (iii) Dispositions of Inventory of Compression Units in the ordinary course of business;
(b) sales, transfers and dispositions Dispositions of assets to the any Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions Dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions Dispositions of products, services or accounts receivable (including at a discount) Accounts in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers Dispositions of Permitted Investments and dispositions of property to the extent such property constitutes an investment other investments permitted by clauses (bSection 6.04(i) or 6.04(k), (h), (l) and (n) of Section 6.04,;
(e) sale Sale and leaseback transactions Leaseback Transactions permitted by Section 6.06,;
(f) dispositions Dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the any Borrower or any Restricted Subsidiary,;
(g) salesDispositions of property that is not included in the determination of the Borrowing Base in the ordinary course of business to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such sale, transfers and transfer, lease or other dispositions disposition are promptly applied to the purchase price of such replacement property;
(h) terminations of Swap Agreements;
(i) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims not to exceed $3,000,000 in any fiscal year; and
(j) Dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph clause of this Section 6.05,
(h) exchanges Section, provided that the aggregate fair market value of property for similar replacement property for fair value,
(i) all assets set forth on Schedule 6.05,
sold, transferred or otherwise disposed of in reliance upon this paragraph (j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of shall not exceed $10,000,000 during any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business fiscal year of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. Borrowers; provided that all sales, transfers, leases and other dispositions Dispositions permitted hereby (x) other than those permitted by paragraphs (b), (c), (f), (l), (nh) and (pf) above) above shall be made for fair value as reasonably determined by the Borrowers and (y) other than those permitted by paragraphs (b), (df), (g), (h), (l), (n) and (p) abovei) for at least 75% cash or Permitted Investment consideration. Notwithstanding anything to the contrary in this Agreement, plus (for all such sales, transfers, leases and other dispositions except as expressly permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph by clause (a) aboveof this Section 6.05, accounts receivable received in or with the ordinary course prior written consent of the Administrative Agent and the Required Lenders, no Loan Party shall, nor shall it permit any property received in exchange for usedSubsidiary to, obsoletedirectly or indirectly, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable salesell, transfer, lease contribute, assign or otherwise dispose of any Intellectual Property owned by any Loan Party that is material to the business of any Loan Party to any Person other disposition by than a Loan Party that is organized under the Borrower or laws of any of its Restricted Subsidiaries shall be deemed to constitute cash consideration)jurisdiction within the United States.
Appears in 1 contract
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Holdings or any Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the another Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions to the Borrower Company or any Restricted Subsidiary; provided that Subsidiary may (i) effect any such salestransaction permitted by Section 6.03, transfers Section 6.04 and Section 6.08(a) or dispositions involving a Non-Loan Party shall be made in compliance with (ii) incur any Lien permitted under Section 6.09,6.02;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment Permitted Investments and other investments permitted by clauses (bj), (h), (lk) and (n) of Section 6.04,;
(e) sale and leaseback transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the any Borrower or any Restricted Subsidiary,;
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests held in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,having a value of up to the sum of $10,000,000 per fiscal year in the aggregate; provided, that such sales, transfers and other dispositions may exceed $10,000,000 per fiscal year if and to the extent that, after giving pro forma effect thereto, (i) no Default or Event of Default then exists or would result therefrom, (ii) Availability is greater than $75,000,000, and (iii) the Fixed Charge Coverage Ratio is greater than 1.15 to 1.00;
(h) exchanges sales, transfers and dispositions of property for similar replacement property for fair value,(i) the Specified Properties and (ii) Glenwood’s Equity Interests in Buyer’s Access;
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or Company and any Restricted Subsidiary may lease, sublease, license or sublicense (on a non-exclusive basis with respect to any secured Investment intellectual property) real, personal or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,business;
(mj) the saleCompany and any Restricted Subsidiary may make sales, lease, conveyance, disposition or transfers and other transfer dispositions of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments property (other than Investments in Inventory if an Event of Default has occurred and is continuing) to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such sales, transfers and other dispositions are promptly applied to the purchase price of such replacement property;
(k) the Company and any Restricted Subsidiary) made pursuant to clause (s) Subsidiary may make sales, transfers and other dispositions of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests investments in joint ventures to the extent required by by, or made pursuant to, to customary buy/sell arrangements entered into in the ordinary course of business between between, the joint venture parties and sent set forth in joint venture agreements. arrangements and similar binding arrangements; and
(l) the Company and any Restricted Subsidiary may sell, transfer or otherwise dispose of, or issue Equity Interests in, Restricted Subsidiaries so long as, after giving effect thereto, (i) the Company or a Restricted Subsidiary continues to have an Equity Interest in such Person, (ii) the total assets of all non-wholly owned Persons that are or were Restricted Subsidiaries, as reflected on their most recent balance sheets prepared in accordance with GAAP, do not in the aggregate at any time exceed $7,500,000, and (iii) the total revenues of all non-wholly owned Persons that are or were Restricted Subsidiaries, for the twelve-month period ending on the last day of the most recent period for which financial statements have been delivered pursuant to Section 5.01(a) or (b) do not in the aggregate exceed $7,500,000; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs clauses (b), (c), (f), (li), (nj) and (pk) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration; provided further, plus that:
(for all such sales, transfers, leases and other dispositions permitted herebyA) an aggregate additional amount any liabilities of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of its the Obligations, that are assumed by the transferee with respect to the applicable disposition and for which such Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing,
(B) any securities received by such Borrower or such Restricted Subsidiary from such transferee that are converted by such Borrower or such Restricted Subsidiary into cash (to the extent of the cash received) within 90 days following the closing of the applicable disposition, and
(C) other than with respect to a disposition of Collateral of the types included in the Borrowing Base, any Designated Non-Cash Consideration received by the Borrowers or their Restricted Subsidiaries in respect of such disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to clause (C) that is at that time outstanding, not in excess of the greater of $25,000,000 and 2.5% of Consolidated Total Assets at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to constitute cash consideration)be cash.
Appears in 1 contract
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary of its Subsidiaries to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the any Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the another Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions to the any Borrower or any Restricted Subsidiary or any Specified Excluded Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party or a Specified Excluded Subsidiary shall be made in compliance with Section 6.09,6.10 and 6.04;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment investments permitted by clauses (bg), (h), (li) and (nj) of Section 6.04,;
(e) sales, transfers and dispositions of assets in connection with the Foreign Reorganization;
(f) sales, transfers and dispositions of the Company’s Equity Interests in the Mexican Joint Venture and Boise Cascade Holdings, L.L.C.;
(g) sale and leaseback transactions permitted by Section 6.06,transactions;
(fh) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the any Borrower or any Restricted Subsidiary,;
(gi) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,
(h) exchanges Section, provided that the aggregate fair market value of property for similar replacement property for fair value,
all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (i) shall not exceed an amount equal to 10% of Total Assets; provided further that the aggregate fair market value of all assets set forth on Schedule 6.05,sold, transferred or otherwise disposed of by the Loan Parties in reliance upon this paragraph (i) shall not exceed $200,000,000 during any fiscal year of the Company; provided further that a professional liquidator acceptable to the Administrative Agents shall be engaged in connection with any sale, transfer or other disposition or related series of sales, transfers or other dispositions of more than 10% of the Company’s and its Subsidiaries’ retail store base; provided, further that dispositions required by the Federal Trade Commission in connection with the OfficeMax Merger (i) shall not count against the $200,000,000 per fiscal year limit above and (ii) shall not be subject to the 10% of Total Assets threshold above; provided, that if such sale, transfer or other disposition or related series of sales, transfers or other dispositions consists of more than 10% of the Company’s and its Subsidiaries’ retail store base, the Administrative Agent shall be able to request an additional inventory appraisal; provided, further, that (i) the net proceeds from any disposition required by the Federal Trade Commission shall be used to prepay any outstanding Revolving Loans (with no corresponding reduction in Commitments) to the extent the Commitments are more than 20% drawn (excluding the effect of outstanding Letters of Credit);
(j) licenses of Intellectual Property that are in furtherance of, or integral to, other business transactions entered into by the sale Company or other disposition a Subsidiary in the ordinary course of Permitted Investments,business;
(k) the sale or disposition of any assets or property received as a result of a foreclosure Restricted Payments permitted by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,Section 6.09;
(l) the licensing dispositions of intellectual property cash and Permitted Investments in the ordinary course of business or in accordance connection with industry practice,a transaction otherwise permitted under this Agreement;
(m) the sale, lease, conveyance, disposition or other transfer dispositions of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of cash and property permitted by Section 6.04,6.04(g);
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,dispositions described on Schedule 6.05(n);
(o) leases sales of inventory to an Original Vendor in connection with any Consignment Transaction; provided that the aggregate amount of Consignment Transactions (based on amount paid to the Company or subleases to third persons its subsidiaries for the subject inventory by the Original Vendor) shall not exceed $100,000,000 in any fiscal year of the Company;
(p) leases, subleases, licenses and sublicenses of assets entered into by any Borrower or any Subsidiary in the ordinary course of business that do not materially interfere in any material respect with the conduct of the business of the Borrower or any of Company and its Restricted Subsidiaries, Subsidiaries taken as a whole; and
(pq) the sale sales, transfers and dispositions of Equity Interests in joint ventures accounts receivable pursuant to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. a Permitted Foreign Subsidiary Factoring Facility; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b) (to the extent the applicable transaction is solely among Loan Parties), (ce), (f), (lh), (ni), (j) and (pk) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Samples: Credit Agreement (Office Depot Inc)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory Inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions to the Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Restricted Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,6.10;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment investments permitted by clauses (b), (h), (lj) and (nk) of Section 6.04,;
(e) sale and leaseback transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,;
(g) licensing and cross-licensing arrangements entered into in the ordinary course of business involving any technology or other intellectual property of the Borrower or any Restricted Subsidiary;
(h) (i) dispositions of Permitted Investments for fair market value and (ii) leases and subleases not materially interfering with the ordinary course of business; and
(i) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph clause of this Section 6.05,
(h) exchanges Section; provided that the aggregate fair market value of property for similar replacement property for fair value,
all assets sold, transferred or otherwise disposed of in reliance upon this clause (i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of shall not exceed $20,000,000 during any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business fiscal year of the Borrower or any $75,000,000 during the term of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. this Agreement; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs clauses (b), (c), (f), (lg), (n) and (ph)(ii) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Orchard Supply Hardware Stores Corp)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary of its Subsidiaries to, sell, transfer, assign, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, rights, or properties, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the any Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the another Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions to the any Borrower or any Restricted Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,6.10 and 6.04;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discounti) in connection with the compromise, settlement or collection thereof consistent with past practice,or (ii) pursuant to the Kohl PrimeRevenue Program and other similar arrangements reasonably acceptable to the Administrative Agent;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment investments permitted by clauses (bg), (h), (li) and (nj) of Section 6.04,;
(e) sale and leaseback transactions permitted by pursuant to Section 6.06,6.14;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the any Borrower or any Restricted Subsidiary,;
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section; provided that (i) the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (g) shall not exceed an amount equal to 15% of Total Assets and (ii) the Net Proceeds received from any such sales, transfers or other dispositions are used to prepay Loans in accordance with Section 6.05,2.11(c);
(h) exchanges licenses of property for similar replacement property for fair value,Intellectual Property entered into by the Company or a Subsidiary in the ordinary course of business;
(i) assets set forth on Schedule 6.05,Restricted Payments permitted by Section 6.09;
(j) the sale or other disposition dispositions of cash and Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property Investments in the ordinary course of business or in connection with a transaction otherwise permitted under this Agreement;
(k) dispositions of cash and property permitted by Section 6.04(g);
(l) the sale of the Option Assets pursuant to the terms of the JCPenney License Agreement (the date of the consummation of such sale, the “Trademark Disposition Date”); provided that (i) the aggregate cash consideration received by the Company on the Trademark Disposition Date in respect of such sale shall be the required amounts set forth in Section 5.3 of the JCPenney License Agreement and (ii) the Net Proceeds received by the Company and its Subsidiaries on the Trademark Disposition Date from such sale shall be used to prepay the Loans in accordance with industry practice,Section 2.11(c);
(m) the sale of the Rhode Island Property or the Ohio Property; provided that in connection with any such sale, lease, conveyance, disposition the Company and/or any of its Subsidiaries shall have repaid the Synthetic Lease Obligations in an amount equal to or other transfer greater than the lesser of (ax) the Equity Interests ofoutstanding Synthetic Lease Obligations and (y) the Net Proceeds of such sale, on or prior to the date that is one Business Day following receipt thereof by the Company and/or any Investment inof its Subsidiaries, in each case, that the Net Proceeds received from any Unrestricted Subsidiary or (b) Investments (other than Investments such sale are used to prepay Loans in any Restricted Subsidiary) made pursuant to clause (s) of accordance with Section 6.04,2.11(g);
(n) surrender or waiver dispositions of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,property permitted by Section 6.04(p);
(o) leases the transfer of Accounts of the European Borrower pursuant to the Unitex Agreement; provided that the fair market value of all Accounts sold pursuant to this clause (o) for which payment from the account debtor is not yet due (based on the payment terms in effect when the Account was sold), together with the aggregate principal amount of Indebtedness incurred pursuant to Section 6.01(v) outstanding, shall not exceed $2,500,000 in the aggregate at any time;[Reserved];
(p) the sale, transfer or subleases to third persons assignment of leased real property, together with fixtures and equipment located on such real property, in each case in connection with store closures in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, andbusiness;
(pq) the sale of Equity Interests the Alabama Property or the Pennsylvania Property; provided, in joint ventures each case, that the Net Proceeds received from any such sale are used to the extent required by or made pursuant to, customary buy/sell arrangements entered into prepay Loans in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. provided that all accordance with Section 2.11(c); and
(r) sales, transfers, leases licenses and other dispositions permitted hereby (other than those of assets that constitute Notes Priority Collateral as permitted by paragraphs (b)and in accordance with any Notes Documentation governing Indebtedness intended or purported to be secured by a first priority lien on such Notes Priority Collateral, (c), (f), (l), (n) so long as the applicable purchaser has acknowledged and (p) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of consented to the non-cash consideration exclusive, royalty-free license granted to the US Collateral Agent with respect to any Trademarks and/or the Mexx Trademark, as applicable, constituting Notes Priority Collateral to the extent any such Trademarks and/or the Mexx Trademark, as applicable, are used in the amount of $20,000,000 connection with any Collateral; and
(it being understood that for purposes of paragraph (as) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable consummation of the Mexx Sale, the sale, transfer, lease transfer or other disposition by the Borrower of all or any portion of its Restricted Subsidiaries shall be deemed the Equity Interests of the Mexx JV held by any Loan Party or any Subsidiary either (i) pursuant to constitute cash consideration).and in accordance with Section 4.1 or 4.2 of the Mexx JV Agreement or (ii) in another transaction permitted under the Mexx JV Agreement;
Appears in 1 contract
Samples: Credit Agreement (Claiborne Liz Inc)
Asset Sales. The Borrower None of Xxxxxx USA, the Company or any other Subsidiary will not, and will not permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to Xxxxxx USA, the Borrower Company or another Restricted any other Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess , and other than directors’ qualifying shares and other nominal amounts of $2,500,000 for any individual transaction or series of related transactionsEquity Interests that are required to be held by other Persons under applicable law), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers transfers, leases and other dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible of inventory or used or surplus equipment or property of cash and Permitted Investments;
(b) sales in the ordinary course of business,business of immaterial assets, including individual retail sales establishments and terminals;
(bc) sales, transfers transfers, leases and other dispositions to Xxxxxx USA, the Borrower Company or any Restricted other Subsidiary; provided that any such sales, transfers transfers, leases or other dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section Sections 6.04 and 6.09,
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,;
(d) sales, transfers or other dispositions of accounts receivable in connection with the compromise or collection thereof in the ordinary course of business consistent with past practice and not as part of any accounts receivables financing transaction;
(e) dispositions of assets subject to any casualty or condemnation proceeding (including dispositions in lieu of condemnation); [[NYCORP:3579392v15:3140D: 02/08/2016--09:30 AM]] #88125723v1
(f) dispositions of property to the extent that (i) such property constitutes an investment permitted by clauses (b), (h), (l) and (n) is exchanged for credit against the purchase price of Section 6.04,
(e) sale and leaseback transactions permitted by Section 6.06,
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any replacement property or asset (ii) the proceeds of such disposition are promptly applied to the Borrower or any Restricted Subsidiary,purchase price of such replacement property;
(g) [intentionally omitted];
(h) [intentionally omitted];
(i) sales, transfers transfers, leases and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph clause of this Section 6.05,
(h) exchanges of property for similar replacement property for fair value,
Section; provided that (i) the aggregate fair value of all assets set forth sold, transferred, leased or otherwise disposed of in reliance on Schedule 6.05,
this clause shall not exceed $30,000,000 during any fiscal year of Xxxxxx USA (j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property net, in the ordinary course case of business fiscal year 2016, of the aggregate fair value of all assets sold, transferred, leased or otherwise disposed of in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (sreliance on Section 6.05(i) of Section 6.04,
(n) surrender the ABL Credit Agreement on or waiver of contract rights or the settlementafter January 1, release or surrender of contract2016, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures and prior to the extent required by or made pursuant toEffective Date), customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. provided that (ii) all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) above) made in reliance on this clause shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration;
(j) [intentionally omitted]; and
(k) other sales, plus transfers and other dispositions of assets, provided that (for i) the aggregate fair value of all assets sold, transferred, leased or otherwise disposed of in reliance on this clause (k) shall not exceed $125,000,000 (net of the aggregate fair value of all assets sold, transferred, leased or otherwise disposed of in reliance on Section 6.05(k) of the ABL Credit Agreement prior to the Effective Date), (ii) all such sales, transfers, leases transfers and other dispositions permitted herebyshall be made for fair value, (iii) an aggregate additional amount no Default or Event of non-cash consideration in Default shall have occurred and be continuing at the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and time any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable such sale, transfer, lease transfer or other disposition is consummated and (iv) the Company shall have given the Administrative Agent written notice advising of such sale, transfer or other disposition and certifying that such sale, transfer or other disposition is permitted hereunder and under the ABL Credit Agreement. Notwithstanding the foregoing, other than dispositions to the Company or another Subsidiary in compliance with Section 6.04, and other than directors’ qualifying shares and other nominal amounts of Equity Interests that are required to be held by other Persons under applicable requirements of law, no such sale, transfer or other disposition of any Equity Interests in any Subsidiary shall be permitted unless (i) such Equity Interests constitute all the Borrower or any of its Restricted Equity Interests in such Subsidiary held by Xxxxxx USA and the Subsidiaries and (ii) immediately after giving effect to such transaction, Xxxxxx USA and the Subsidiaries shall otherwise be deemed to constitute cash consideration)in compliance with Section 6.04.
Appears in 1 contract
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions of assets to the Borrower or any Restricted Subsidiary; provided Subsidiary that any such sales, transfers or dispositions involving a Non-Loan Party shall be made in compliance with Section 6.09,Party;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers (i) non-exclusive licenses of intellectual property rights in the ordinary course of business and dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) substantially consistent with past practice for terms not exceeding five years and (nii) non-exclusive licenses of Section 6.04,intellectual property rights to any present or future franchisee of a “Potbelly Sandwich Works” restaurant concept in connection with a franchise agreement entered into on an arm’s length basis and in the ordinary course of business between Potbelly Franchising and such franchisee;
(e) sale and leaseback transactions permitted by Section 6.06,;
(f) sales, transfers and dispositions in connection with mergers and consolidations permitted by Section 6.03;
(g) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,;
(gh) Liens permitted by Section 6.02;
(i) dispositions of no more than 10% of the Restaurants in existence as of the beginning of the applicable Fiscal Year in which such dispositions occur; provided that (i) at the time of such disposition, no Event of Default shall exist or would result from such disposition, (ii) any disposition which is a sale, transfer or other similar transaction shall be an arm’s length transaction with a Person other than an Affiliate, and (iii) in connection with any disposition which is a sale, transfer or other similar transaction, the aggregate amount of any proceeds consisting of non-cash consideration received in connection with all such Dispositions permitted under this clause (i) in any Fiscal Year shall not exceed $500,000;
(j) so long as no Event of Default or Default has occurred and is continuing or would occur as a result thereof, sales, transfers and other dispositions by the Borrower of assets its property at prices and on terms and conditions not less favorable to the Borrower than could be obtained on an arm’s-length basis from unrelated third parties, provided that the aggregate fair market value (other than Equity Interests as determined in a Restricted Subsidiary unless good faith by the Borrower) of all Equity Interests property sold, transferred or otherwise disposed of in such Restricted Subsidiary are sold) that are not permitted by any other reliance upon this paragraph of this Section 6.05,
(h) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do twelve month period shall not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. exceed $5,000,000; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (ba)(ii), (c), (f), (l), (nb) and (pf) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Samples: Credit Agreement (Potbelly Corp)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the any Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary Loan Party in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers transfers, leases and dispositions by: (i) any U.S. Borrower to the Borrower or any Restricted Subsidiary; provided that other U.S. Borrower, (ii) any such salesU.S. Loan Guarantor to any other U.S. Loan Party, transfers or dispositions involving a Non-and (iii) any Canadian Loan Party shall be made in compliance with Section 6.09,(other than the Canadian Borrower) to any other Canadian Loan Party;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment Permitted Investments and other investments permitted by clauses (b), clause (h), (l) and (n) of Section 6.04,;
(e) sale and leaseback transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the any Borrower or any Restricted Subsidiary,;
(g) the licensing, on a non-exclusive basis, of patents, trademarks, copyrights, and other intellectual property rights in the ordinary course of business;
(h) the granting of Permitted Liens;
(i) sales, transfers and dispositions to the extent constituting investments permitted under Section 6.04; and
(j) sales, transfers and other dispositions of fixed or capital assets that are not permitted by any other paragraph of this Section, provided that the aggregate fair market value of all fixed or capital assets sold, transferred or otherwise disposed of in reliance upon this paragraph (j) shall not exceed $5,000,000 during any fiscal year of the Borrowers;
(k) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,
(h) exchanges Section, provided that the aggregate fair market value of property for similar replacement property for fair value,
(i) all assets set forth on Schedule 6.05,
(j) the sale sold, transferred or other disposition otherwise disposed of Permitted Investments,
in reliance upon this paragraph (k) the sale or disposition of shall not exceed $5,000,000 during any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business fiscal year of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. Borrowers; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (ba)(ii), (c), (f), (l), (nb) and (pf) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration)value.
Appears in 1 contract
Samples: Credit Agreement (Ddi Corp)
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary to, sellSell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any assetasset (other than assets sold, transferred, leased or otherwise disposed of in a single transaction or a series of related transactions with a fair market value of $25,000,000 or less), including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower Issuer permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares and other than issuing Equity Interests to the Borrower Issuer or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactionsSubsidiary), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers transfers, leases and other dispositions of (i) inventory in the ordinary course of business and inventory, (ii) used, obsolete, damaged, obsolete, worn out, negligible out or surplus equipment equipment, (iii) property no longer used or property useful in the conduct of the business of the Issuer and its Subsidiaries (including IP Rights) and (iv) cash and Permitted Investments, in each case in the ordinary course of business,;
(b) sales, transfers transfers, leases and other dispositions to the Borrower Issuer or any Restricted a Subsidiary; provided that any such sales, transfers transfers, leases or other dispositions involving a Non-Loan Subsidiary that is not a Note Party shall shall, to the extent applicable, be made in compliance with Section 6.09,6.04, Section 6.09 and Section 6.15;
(c) sales, transfers and other dispositions or forgiveness of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,not as part of any accounts receivables financing transaction (including sales to factors and other third parties);
(d) (i) sales, transfers transfers, leases and other dispositions of property assets to the extent that such property constitutes assets constitute an investment permitted by clauses clause (b), (hj), (l) and or (n) of Section 6.04,6.04 or another asset received as consideration for the disposition of any asset permitted by this Section (in each case, other than Equity Interests in a Subsidiary, unless all Equity Interests in such Subsidiary (other than directors’ qualifying shares) are sold) and (ii) sales, transfers, and other dispositions of the Equity Interests of a Subsidiary by the Issuer or a Subsidiary to the extent such sale, transfer or other disposition would be permissible as an Investment in a Subsidiary permitted by Section 6.04(e) or (u);
(e) sale and leaseback transactions permitted by Section 6.06,leases or subleases entered into in the ordinary course of business, to the extent that they do not materially interfere with the business of the Issuer or any Subsidiary;
(f) non-exclusive licenses or sublicenses of IP Rights granted in the ordinary course of business or other licenses or sublicenses of IP Rights granted in the ordinary course of business that do not materially interfere with the business of the Issuer or any Subsidiary;
(g) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, and transfers of property arising from foreclosure or similar action with regard to, any property or asset of the Borrower Issuer or any Restricted Subsidiary,;
(gh) dispositions of assets to the extent that (i) such assets are exchanged for credit against the purchase price of similar replacement assets or (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement assets;
(i) dispositions permitted by Section 6.02, Section 6.04 and Section 6.08;
(j) [reserved];
(k) sales, transfers transfers, leases and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph clause of this Section 6.05,
(h) exchanges Section; provided that no Event of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale Default has occurred and is continuing or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a would result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,therefrom;
(l) the licensing sales, transfers or other dispositions of intellectual property Permitted Receivables Facility Assets in the ordinary course of business or in accordance connection with industry practice,Permitted Receivables Facilities;
(m) the salesales, lease, conveyance, disposition transfers or other transfer dispositions of any assets (aincluding Equity Interests) (A) acquired in connection with any acquisition or other investment permitted under Section 6.04, which assets are not used or useful to the Equity Interests of, core or any Investment in, any Unrestricted Subsidiary or principal business of the Issuer and its Subsidiaries and/or (b) Investments (other than Investments in any Restricted SubsidiaryB) made pursuant to clause (s) obtain the approval of any applicable antitrust authority in connection with an acquisition permitted under Section 6.04,;
(n) surrender or waiver of contract rights or the settlementsales, release or surrender of contract, tort transfers or other claims dispositions of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests Investments in joint ventures to the extent required by by, or made pursuant to, to customary buy/sell arrangements entered into in the ordinary course of business between between, the joint venture parties and sent set forth in joint venture agreements. arrangements and similar binding arrangements; and
(o) to the extent constituting a disposition governed by this Section, the unwinding or early termination or settlement of any Hedging Agreement or any Permitted Bond Hedge Transaction or Permitted Warrant Transaction or other option, forward or other derivative contract; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs clauses (ba)(iii), (c), (f), (l), (nb) and (pc)) above) for a purchase price in excess of $25,000,000 shall be made for fair value (as reasonably determined in good faith by the Issuer), shall be subject to Section 6.15, and at least 75% of the consideration from all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs clause (b), (d), (g) or (h)) is in the form of cash or Permitted Investments; provided further that (i) any consideration in the form of Permitted Investments that are disposed of for cash consideration within thirty (30) days after such sale, (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and transfer or other dispositions permitted hereby) an aggregate additional amount of non-disposition shall be deemed to be cash consideration in an amount equal to the amount of $20,000,000 (it being understood that such cash consideration for purposes of paragraph this proviso, (aii) above, accounts receivable received any liabilities (as shown on the Issuer’s or such Subsidiary’s most recent balance sheet provided hereunder or in the ordinary course and any property received footnotes thereto) of the Issuer or such Subsidiary, other than liabilities that are by their terms subordinated to the payment in exchange for usedcash of the Obligations, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following are assumed by the transferee with respect to the applicable sale, transfer, lease or other disposition and for which the Issuer and all its Subsidiaries shall have been validly released by the Borrower or any of its Restricted Subsidiaries all applicable creditors in writing shall be deemed to constitute be cash consideration in an amount equal to the liabilities so assumed and (iii) any Designated Non-Cash Consideration received by the Issuer or such Subsidiary in respect of such sale, transfer, lease or other disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding, not in excess of the greater of (x) $50,000,000 and (y) 10.0% of Consolidated EBITDA for the most recently ended four fiscal quarter period for which financial statements have been delivered under Section 5.01(a) or (b) at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash consideration).
Appears in 1 contract
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests it, or Equity Interests required by applicable law agree to be held by a Person other than do any of the Borrower a Restricted Subsidiary)foregoing, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions, except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) salessales of inventory, transfers and dispositions of (i) inventory obsolete equipment no longer used in the ordinary course business of business such Person or any Loan Party and (ii) used, damaged, obsolete, worn out, negligible or surplus equipment or property Permitted Investments in the ordinary course of business,;
(b) sales, transfers and dispositions to the Borrower or any Restricted Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Subsidiary Loan Party shall be made in compliance with Section 6.09,(other than Newco); and
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,
(e) sale and leaseback transactions permitted by Section 6.06,
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are soldSubsidiary) that are not permitted by any other paragraph clause of this Section 6.05,
Section; provided that the aggregate value of all assets sold, transferred or otherwise disposed of in reliance upon this clause (hc) exchanges shall not exceed any of property for similar replacement property for fair value,
the following: (i) assets $500,000 during any fiscal year; (ii) ten percent (10%) of Consolidated Tangible Assets (as set forth on Schedule 6.05,
(j) the sale or other disposition most recent consolidated balance sheet of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or and its Subsidiaries determined in accordance with industry practice,
GAAP) during any period of 12 consecutive months, and (miii) the sale, lease, conveyance, disposition or other transfer of twenty-five percent (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s25%) of Section 6.04,
Consolidated Tangible Assets (n) surrender or waiver of contract rights or as set forth on the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business most recent consolidated balance sheet of the Borrower or any and its Subsidiaries determined in accordance with GAAP) during the period from the Effective Date through the date of its Restricted Subsidiariessuch disposition; provided, and
(p) the sale of Equity Interests further, in joint ventures to the extent required by or made pursuant toeach case, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs clause (b), (c), (f), (l), (n) and (p) above) shall be made for fair market value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) solely for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Samples: Credit Agreement (T Netix Inc)
Asset Sales. The None of Holdings, the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower will, nor will not, and will not they permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower they permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactionsSubsidiary, except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers transfers, leases and other dispositions of (i) inventory in the ordinary course of business and (ii) usedinventory, damaged, obsolete, worn out, negligible used or surplus equipment or property other obsolete assets, Permitted Investments and Investments referred to in Section 6.04(i) in the ordinary course of business,;
(b) sales, transfers and dispositions to the Parent Borrower or any Restricted a Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Domestic Loan Party shall be made in compliance with Section 6.09,;
(c) (i) sales of accounts receivable and related assets pursuant to the Receivables Purchase Agreement, (ii) sales of accounts receivable and related assets by a Foreign Subsidiary pursuant to customary terms whereby recourse and exposure in respect thereof to any Foreign Subsidiary does not exceed at any time $40,000,000 and (iii) sales of accounts receivables and related assets pursuant to the Specified Vendor Receivables Financing.
(d) the creation of Liens permitted by Section 6.02 and dispositions as a result thereof;
(e) sales or transfers that are permitted sale and leaseback transactions pursuant to Section 6.06;
(f) sales and transfers that constitute part of an Acquisition Lease Financing;
(g) Restricted Payments permitted by Section 6.08;
(h) transfers and dispositions constituting investments permitted under Section 6.04;
(i) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,
(d) sales, transfers and other dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,identified on Schedule 6.05;
(e) sale and leaseback transactions permitted by Section 6.06,
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,
(gj) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are soldSubsidiary) that are not permitted by any other paragraph clause of this Section 6.05,
Section; provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this clause (hj) exchanges of property for similar replacement property for fair value,
shall not exceed (i) 15% of the aggregate fair market value of all assets set forth of the Parent Borrower (determined as of the end of its most recent fiscal year), including any Equity Interests 509265-1724-13879091 owned by it, during any fiscal year of the Parent Borrower; provided that such amount shall be increased, in respect of the fiscal year ending on Schedule 6.05,
December 31, 2013, and each fiscal year thereafter by an amount equal to the total unused amount of such permitted sales, transfers and other dispositions for the immediately preceding fiscal year (jwithout giving effect to the amount of any unused permitted sales, transfers and other dispositions that were carried forward to such preceding fiscal year) and (ii) 35% of the sale or other disposition aggregate fair market value of Permitted Investments,all assets of the Parent Borrower as of the Restatement Effective Date, including any Equity Interests owned by it, during the term of this Agreement subsequent to the Restatement Effective Date; and
(k) sale of the sale Designated Business; provided that (i) at the time of and after giving effect to such sale, Holdings and the Parent Borrower shall be in pro forma compliance with the financial covenants set forth in Sections 6.12 and 6.13, (ii) at the time of and after giving effect to such sale, no Default or disposition Event of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
Default shall have occurred and be continuing and (liii) the licensing of intellectual property in the ordinary course of business or Net Proceeds thereof shall be used to prepay Term Loans in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. 2.11(c); provided that (x) all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs clause (b), (c), (f), (l), (n) and (p) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (ny) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted herebyby clauses (i), (j) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 and (it being understood that for purposes of paragraph (ak) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries above shall be deemed to constitute for at least 75% cash consideration).
Appears in 1 contract
Samples: Credit Agreement (Trimas Corp)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary of its Subsidiaries to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower Company permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower Company or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers transfers, leases, licenses and dispositions to the Borrower Company or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section Sections 6.04 and 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to Permitted Investments in the extent such property constitutes an investment ordinary course of business and other investments permitted by clauses (b), (h), (li) and (nj) of Section 6.04,;
(e) sale and leaseback transactions permitted by Section 6.06,;
(f) Restricted Payments permitted by Section 6.08;
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Loan Party unless all Equity Interests in such Loan Party are sold) in an aggregate amount not to exceed $400,000,000 so long as both immediately before and immediately after giving pro forma effect thereto no Default or Event of Default shall have occurred and be continuing;
(h) sales, transfers and other dispositions of Equity Interests in Campofrio so long as both immediately before and immediately after giving pro forma effect thereto no Default or Event of Default shall have occurred and be continuing;
(i) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower Company or any Restricted Subsidiary,;
(gj) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary Loan Party unless all Equity Interests in such Restricted Subsidiary Loan Party are sold) that are not permitted by any other paragraph of this Section 6.05,Section; provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (j) shall not exceed $10,000,000 during any fiscal year of the Company; and
(hk) exchanges sales, transfers and other dispositions of property for similar replacement property for fair value,
assets of Foreign Subsidiaries; provided that (i) assets set forth on Schedule 6.05,
in the event any such sale, transfer or disposition or series of sales, transfers or other dispositions constitutes the disposition of a business unit, division, product line or line of business (jother than any sale transfer or disposition of the Equity Interests in Campofrio), and to the extent any loans made to Foreign Subsidiaries in reliance upon Section 6.04(o) are outstanding, the sale Net Proceeds of such sale, transfer or other disposition shall promptly be used to repay any such loans and the amount of such repayment shall promptly be used to repay any outstanding Loans, and (ii) in the case of any sale, transfer or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower all or any Restricted Subsidiary with respect to any secured Investment or other transfer part of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests ofin Campofrio, or the Net Proceeds of any Investment in, such disposition in excess of $50,000,000 shall be used to repay any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) outstanding loans made pursuant to clause (sSection 6.04(o) and the amount of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of such repayment shall be used to repay any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. outstanding Loans; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (pf) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Asset Sales. The Borrower will not, and will not permit Effect any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary), nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactionsAsset Sale, except (in each case, whether effected pursuant to a Division or otherwise):that the following shall be permitted:
(a) salesthe disposition for fair market value of obsolete, transfers and dispositions surplus or worn out property or property no longer useful or necessary in the business of the Loan Parties;
(ib) the disposition of cash or Cash Equivalents (in each case in transactions not prohibited hereunder), Investments permitted pursuant to Section 6.04, inventory in the ordinary course of business business, and receivables (in connection with the collection thereof and otherwise as customary in businesses of the type conducted by the Loan Parties);
(c) dispositions permitted by Section 6.05 or Section 6.07;
(d) the sale or issuance of any Loan Party’s Equity Interests (other than Disqualified Capital Stock) to its direct parent or (except in the case of the sale or issuance of the Borrower’s Equity Interests) to another Loan Party;
(e) dispositions of property having a fair market value not in excess of $2,500,000 in the aggregate (with respect to all the Loan Parties) in any fiscal year; provided, that (i) the consideration received for such property shall be in an amount at least equal to the fair market value thereof (determined as of the time of execution of a binding agreement with respect to such dispositions); and (ii) usedthe consideration received therefor shall be at least 75% in cash or Cash Equivalents; provided that for purposes of this clause (ii), damagedeach of the following shall be deemed to be cash: (A) any liabilities (as shown the most recent balance sheet of Borrower and its consolidated Subsidiaries provided hereunder or in the footnotes thereto) of the Borrower or such Loan Party, obsoleteother than liabilities that are by their terms subordinated to the payment in cash of the Obligations, worn outthat are assumed by the transferee with respect to the applicable disposition and for which Borrower and the applicable Loan Parties shall have been validly released and (B) any securities or instruments received by the Borrower or such Loan Party from such transferee that are converted by the Borrower or such Loan Party into cash (to the extent of the cash received) within 180 days following the closing of the applicable disposition;
(f) subject to the last paragraph of this Section 6.06, negligible the Borrower and its Restricted Subsidiaries may enter into any leases or surplus equipment subleases with respect to any of its Real Property (including in order to minimize unrelated business taxable income to indirect members in Borrower);
(g) the dedication of space or other dispositions of property in connection with and in furtherance of constructing structures or improvements reasonably related to the development, construction and operation of the Project; provided, that in each case such dedication or other dispositions are in furtherance of, and do not materially impair or interfere with the use or operations (or intended use or operations) of, the Project;
(h) any Loan Party may (i) license trademarks, trade names, copyrights, patents and other Intellectual Property in the ordinary course of business,
(b) sales, transfers and dispositions to the Borrower or any Restricted Subsidiary; provided that any such saleslicensing, transfers individually or dispositions involving a Non-Loan Party shall be made in compliance with Section 6.09,
the aggregate (c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,
(e) sale and leaseback transactions permitted by Section 6.06,
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,
(h) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the saleall Loan Parties), lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do does not interfere in any material respect with the ordinary conduct of the business of the Loan Parties and (ii) abandon any trademarks, trade names, copyrights, patents or other Intellectual Property no longer necessary in the business of the Loan Parties;
(i) the incurrence of Liens permitted under Section 6.02; provided, that any leases (whether or not constituting Permitted Liens) shall be permitted only to the extent provided in subsection (f) above and the last paragraph of this Section 6.06;
(j) Asset Sales in connection with or as a result of any Casualty Event; provided, that the Loan Parties otherwise comply with Sections 2.10 and 2.17, as applicable;
(k) Asset Sales by any Loan Party to the Borrower or any Subsidiary Guarantor; provided, that in each case each Subsidiary Guarantor shall have taken all actions required pursuant to Section 5.10 with respect to any property acquired by it pursuant to this clause (k);
(l) the granting of its Restricted Subsidiarieseasements, rights of way and rights of access to Governmental Authorities, utility providers, cable or other communication providers and other parties providing services or benefits to the Project, the Real Property held by the Loan Parties or the public at large that (i) do not in any case materially detract from the value of the Real Property, taken as a whole, and (ii) would not reasonably be expected to interfere in any material respect with the construction, development or operation of the Project or the Real Property;
(m) any Loan Party may (i) enter into a master lease with respect to any portion of the Project with a person who shall from time to time directly or indirectly lease or sublease such property to persons who, either directly or through Affiliates of such persons, shall operate or manage all or some of the food and beverage or retail venues within the Project, including without limitation restaurants, night clubs and bars, or recreation venues within the Project, and (ii) grant related declarations of covenants, conditions and restrictions and reservation of easements and common area spaces benefiting the tenants of such lease and subleases generally (collectively, “Master Lease Easements,” and together with any such master lease, are referred to collectively as “Master Lease Documents” and individually as a “Master Lease Document”); provided that (A) no Event of Default shall exist and be continuing at the time any such Master Lease Document is entered into or would occur as a result of entering into such Master Lease Document or sublease permitted pursuant thereto, (B) the Loan Parties shall be required to maintain control (which may be through required contractual standards) over the primary aesthetics and standards of service and quality of the business being operated or conducted in connection with any such leased or subleased space, and (C) no Master Lease Document or operations conducted pursuant thereto would be reasonably expected to materially interfere with, or materially impair or detract from, the operation of the Project; provided, further that (x) the Collateral Agent on behalf of the Secured Parties shall provide the master lessee tenant under any Master Lease Document and any tenants under any sublease entered into pursuant to such Master Lease Document with a subordination, non-disturbance and attornment agreement substantially in the form of Exhibit S hereto or in such other form as is reasonably satisfactory to the Collateral Agent and the applicable Loan Party, and (y) unless the Administrative Agent shall otherwise waive such requirement, with respect to any such lease or sublease having a term of five years or more and reasonably anticipated annual rents (whether due to base rent, fixed rents, reasonably anticipated percentage rents or other reasonably anticipated rental income from such lease or sublease) in excess of $5,000,000 (other than leases solely between Loan Parties) the applicable Loan Party shall enter into, and cause the tenant under any such Master Lease Document to enter into, such subordination, non-disturbance and attornment agreement;
(n) the (i) lease or sublease of, any portion of the Project to persons who, either directly or through Affiliates of such persons, intend to operate or manage a night club, bar, restaurant, recreation, spa, pool, exercise or gym facility, or entertainment or retail venues within the Project and (ii) the grant of related declarations of covenants, conditions and restrictions and reservation of easements and common area spaces benefiting such tenants of such lease and subleases generally (collectively, the “Entertainment Venue Easements,” and together with any such lease or sublease, are referred to collectively as the “Entertainment Venue Documents” and individually as an “Entertainment Venue Document”); provided that (A) no Event of Default shall exist and be continuing at the time any such Entertainment Venue Document is entered into or would occur as a result of entering into such Entertainment Venue Document, (B) the Loan Parties shall be required to maintain control (which may be through required contractual standards to be determined by the respective Loan Parties in their sole but reasonable discretion) over the primary aesthetics and standards of service and quality of the business being operated or conducted in connection with any such leased or subleased space and (C) no Entertainment Venue Document or operations conducted pursuant thereto would reasonably be expected to materially interfere with, or materially impair or detract from, the operation of the Project; provided further that (x) upon request by the Borrower, the Collateral Agent on behalf of the Secured Parties shall provide the tenant under any Entertainment Venue Document with a subordination, non-disturbance and attornment agreement substantially in the form of Exhibit S hereto or in such other form as is reasonably satisfactory to the Collateral Agent and the applicable Loan Party, and (y) unless the Administrative Agent shall otherwise waive such requirement, with respect to any such Entertainment Venue Document having a term of five years or more and reasonably anticipated annual rents (whether due to base rent, fixed rents, reasonably anticipated percentage rents or other reasonably anticipated rental income from such lease or sublease) in excess of $5,000,000 (other than leases solely between Loan Parties), the applicable Loan Party shall enter into, and cause the tenant under any such Entertainment Venue Document to enter into, such subordination, non-disturbance and attornment agreement; and
(po) Investments permitted under Section 6.04. Notwithstanding the sale foregoing provisions of Equity Interests in joint ventures this Section 6.06, subsection (f) above shall be subject to the extent required by additional provisos that: (a) no Event of Default shall exist and be continuing at the time such transaction, lease or made pursuant tosublease is entered into, customary buy/sell arrangements entered into in (b) such transaction, lease or sublease would not reasonably be expected to materially interfere with, or materially impair or detract from, the ordinary course operation of business between the joint venture parties and sent forth in joint venture agreements. provided that all salesProject, transfers(c) no gaming, leases and other dispositions permitted hereby hotel or casino operations (other than those permitted hotel operations approved in writing by paragraphs (b)the Required Lenders and the operation of arcades and games for minors) may be conducted on any space that is subject to such transaction, (c), (f), (l), (n) lease or sublease other than by and for the benefit of the Loan Parties and (pd) aboveno lease or sublease may provide that a Loan Party subordinate its fee, condominium or leasehold interest to any lessee or any party financing any lessee; provided, that (x) the Collateral Agent on behalf of the Secured Parties shall provide the tenant under any such lease or sublease (at the request of the Borrower) with a subordination, non-disturbance and attornment agreement substantially in the form of Exhibit S hereto with such changes as the Collateral Agent may approve, which approval shall not be made for fair value unreasonably withheld, conditioned or delayed, or in such other form as is reasonably satisfactory to the Collateral Agent and (y) unless the Administrative Agent shall otherwise waive such requirement, with respect to any such lease or sublease having a term of five years or more and reasonably anticipated annual rents (whether due to base rent, fixed rents, reasonably anticipated percentage rents or other reasonably anticipated rental income from such lease or sublease) in excess of $5,000,000 (other than those permitted by paragraphs (bleases solely between Loan Parties), (d)the applicable Loan Party shall enter into, (h)and cause the tenant under any such lease or sublease to enter into with the Collateral Agent for the benefit of the Secured Parties, (l)a subordination, (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration disturbance and attornment agreement, substantially in the amount form of $20,000,000 (it being understood that for purposes of paragraph (a) aboveExhibit S hereto with such changes as the Collateral Agent may approve, accounts receivable received in the ordinary course and any property received in exchange for usedwhich approval shall not be unreasonably withheld, obsolete, worn out conditioned or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration)delayed.
Appears in 1 contract
Samples: Credit Agreement (Stockbridge/Sbe Investment Company, LLC)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower Loan Parties permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the a Borrower or another Restricted Subsidiary Loan Party in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions to the Borrower Borrowers or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,6.08;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment investments permitted by clauses (b), (h), (lj) and (nl) of Section 6.04,;
(e) sale and leaseback transactions permitted by Section 6.06,
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower Loan Parties or any Restricted Subsidiary,; and
(gf) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,
Section, provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (hg) exchanges shall not exceed $25,000,000 during any fiscal year of property for similar replacement property for fair value,
the Borrowers; provided that such limit shall not apply if at the time of such disposition, there is no outstanding Revolving Exposure and the Loan Parties have at least $25,000,000 of cash (i) assets set forth on Schedule 6.05,
(j) the sale unencumbered by any pledge or Lien other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of than those permitted under clause (a) of the Equity Interests ofdefinition of Permitted Encumbrances) on their combined balance sheet both before and after giving effect to such disposition (without regards to the proceeds of such sale, transfer or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,disposition);
(ng) surrender or waiver the disposition of contract rights or the settlement, release or surrender interest of contract, tort or other claims of any kind,
(o) leases or subleases to third persons ANS and its Subsidiaries in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. Footner Plant; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (pe) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Asset Sales. The Neither Holdings nor the Borrower will, nor will not, and will not they permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions to the Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (bii), (hviii), (lxii) and (nxiv) of Section 6.04,;
(e) sale and leaseback transactions permitted by Section 6.06,;
(f) PPM Asset Dispositions, provided that the aggregate fair value of all assets sold, transferred or otherwise disposed of in reliance of this paragraph (f) (together with all sales, transfers and other dispositions of assets made in reliance on paragraph (h) of this Section 6.05) shall not exceed $100,000,000 during the term of this Agreement;
(g) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,;
(gh) sales, transfers and other dispositions of assets (other than (i) Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are soldsold and (ii) transfers of real property to any Permitted Real Estate Joint Venture) that are not permitted by any other paragraph of this Section, provided that the aggregate fair value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (h) (together with all PPM Asset Dispositions made in reliance on paragraph (f) of this Section 6.05,) shall not exceed $100,000,000 during the term of this Agreement;
(hi) transfers of real property owned by the Borrower or any Subsidiary on the Effective Date and listed on Schedule 6.05(i) to a Permitted Real Estate Joint Venture, provided that (A) the aggregate fair value of all real property transferred in reliance upon this paragraph (i) shall not exceed (x) $25,000,000 during the period from and including the Effective Date to and including December 31, 2005, and (y) $75,000,000 during the term of this Agreement and (B) such transfer shall be made for fair value and for consideration consisting of (x) in the event such Permitted Real Estate Joint Venture incurs Indebtedness from a Person other than the Borrower or any Subsidiary Loan Party to finance the purchase of such real property, an amount of cash equal to 100% of the Net Proceeds of such Indebtedness plus 100% of the Net Proceeds of sales of Equity Interests in such Permitted Real Estate Joint Venture to physicians who are owners, members or employees of the applicable Affiliated Practice, which cash consideration shall not be less than 65% of the fair value of such real property and (y) otherwise, cash in an amount equal to 100% of the Net Proceeds of the sales of Equity Interests in such Permitted Real Estate Joint Venture to physicians who are owners, members or employees of the applicable Affiliated Practice plus a note in an aggregate principal amount equal to not less than 65% of the fair value of such real property, which note shall be secured by a perfected first-priority security interest in such real property and pledged to the Collateral Agent pursuant to the Collateral Agreement;
(j) transfers of real property acquired after the Effective Date by the Borrower or any Subsidiary to a Permitted Real Estate Joint Venture, provided that (A) such real property is (i) transferred within one year of opening by the Borrower or such Subsidiary and (ii) prior to such transfer, subject to a mortgage (if a mortgage is required pursuant to Section 5.13(b) and the Borrower or such Subsidiary shall have taken any other actions reasonably related thereto as described in Section 5.13), (B) any Indebtedness of the Borrower or a Subsidiary incurred to finance the acquisition of such real property (or any construction or improvements thereto) is repaid in full or assumed by the Permitted Real Estate Joint Venture at the time such real property is transferred to such Permitted Real Estate Joint Venture and (C) such transfer shall be made for fair value and for consideration consisting of (x) in the event such Permitted Real Estate Joint Venture incurs Indebtedness from a Person other than the Borrower or any Subsidiary Loan Party to finance the purchase of such real property, an amount of cash equal to 100% of the Net Proceeds of such Indebtedness plus 100% of the Net Proceeds of sales of Equity Interests in such Permitted Real Estate Joint Venture to physicians who are owners, members or employees of the applicable Affiliated Practice, which cash consideration shall not be less than 65% of the fair value of such real property and (y) otherwise, cash in an amount equal to 100% of the Net Proceeds of the sales of Equity Interests in such Permitted Real Estate Joint Venture to physicians who are owners, members or employees of the applicable Affiliated Practice plus a note in an aggregate principal amount equal to not less than 65% of the fair value of such real property, which note shall be secured by a perfected first-priority security interest in such real property and pledged to the Collateral Agent pursuant to the Collateral Agreement;
(k) issuances and sales of Equity Interests in a Permitted Real Estate Joint Venture to any physician who is an owner, member or employee of an Affiliated Practice, provided that after giving effect to such issuance or sale, the Borrower and one or more Subsidiaries owns at least a majority of the Equity Interests of such Permitted Real Estate Joint Venture; and
(l) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (pg) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (hi), (l), (nj) and (pl) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that (x) for purposes of paragraph clause (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-shall be deemed to constitute cash consideration that was actually converted into cash within 6 months following and (y) for purposes of paragraph (f) above, notes having a maturity date no later than 90 days after the date of the applicable sale, transfer, lease or other disposition PPM Asset Disposition received by the Borrower or any of its Restricted Subsidiaries Subsidiary and that are paid in full in cash during such period shall be deemed to constitute cash consideration).
Appears in 1 contract
Samples: Credit Agreement (St. Louis Pharmaceutical Services, LLC)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary of its Subsidiaries to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the any Borrower permit any Restricted Subsidiary of its Subsidiaries to issue any additional Equity Interest in such Restricted Subsidiary (other than to the a Borrower or another Restricted Subsidiary thereof in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions to the a Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof; 116
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment investments permitted by clauses (b), (h), (li) and (nk) of Section 6.04,;
(e) sale and leaseback transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the a Borrower or any Restricted Subsidiary,Subsidiary thereof;
(g) sale of the ISEP Business or the Containment Business; and
(h) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary of a Borrower unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,
Section, provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (hg) exchanges shall not exceed $2,500,000 during any fiscal year of property the Company; provided further that sales, transfers and dispositions in excess of $2,500,000 shall be permitted if the Net Proceeds thereof in excess of $2,500,000 are applied to prepay the Revolving Loans and permanently reduce the Total Revolving Commitments (and for similar replacement property for fair value,
(i) any sale of assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure UK Loan Party or the Belgian property of the Belgian Borrower, the UK Revolving Sublimit or the Belgian Revolving Sublimit, as applicable) by the Borrower or any Restricted Subsidiary with respect amount of such prepayment as provided in Section 2.10(e) and not less than five (5) US Business Days prior to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the such sale, leasetransfer or disposition, conveyancethe Company shall deliver to the Administrative Agent a Borrowing Base Certificate for the applicable Borrowing Base in respect of the assets to be sold, disposition transferred or other transfer otherwise disposed of (a) and such Borrowing Base Certificate shall demonstrate that the Equity Interests US Availability, UK Availability or Belgian Availability, as applicable depending on the assets sold, transferred or disposed of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other shall not be reduced by an amount greater than Investments in any Restricted Subsidiary) made the Net Proceeds to be received by the Loan Parties and applied to the prepayment of the Revolving Loans pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or 2.10(a); provided further however that the settlement, release or surrender of contract, tort or other claims of Loan Parties shall not be required to make any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business prepayments of the Borrower Revolving Loans or any reduce the Total Revolving Commitments under the second proviso above until the aggregate amount of its Restricted Subsidiaries, and
(p) such Net Proceeds in excess of $2,500,000 equal $500,000 and then the sale Loan Parties shall be required to prepay the total amount in excess of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. $2,500,000; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (pf) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the any Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the another Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, unmerchantable, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions of assets to the any Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-which are not solely among Borrowers, solely among Loan Party Parties (other than Borrowers), or solely among Subsidiaries which are not Loan Parties, shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment Permitted Investments and other investments permitted by clauses clause (b), (h), (l) and (nk) of Section 6.04,;
(e) sale and leaseback transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the any Borrower or any Restricted Subsidiary,;
(g) subject to the terms of Section 2.11(c), sales or other dispositions of property (other than Eligible Inventory) to the extent that (i) the property disposed of is exchanged for credit against the purchase price of similar replacement property and (ii) the proceeds of such sale or disposition are reasonably promptly applied to the purchase price of such replacement property;
(h) sales or other dispositions of property acquired pursuant to a Permitted Acquisition so long as (i) the consideration received for the assets to be so sold or disposed is at least equal to the fair market value of such assets, (ii) the aggregate fair market value of all such property sold or disposed of under this clause (h) does not exceed $12,500,000 from the Effective Date, (iii) the assets to be so sold or disposed are readily identifiable as assets acquired pursuant to the subject Permitted Acquisition, (iv) the assets to be so sold or disposed are not necessary or integral in connection with the business of any Borrower or any Subsidiary, (v) no Default has occurred and is continuing or would result from any such sale or disposition, (vi) both before and after giving effect to any such sale or disposition, the Borrowers shall have Excess Availability of at least 20% of the Aggregate Revolving Commitments, (vii) immediately after giving effect to any such sale or disposition, the Borrowers shall have a Fixed Charge Coverage Ratio, recomputed on a trailing twelve (12) month pro forma basis for the most recent month for which financial statements have been delivered, of no less than 1.20 to 1.0, (viii) the Borrowers have provided the Administrative Agent with written confirmation, supported by reasonably detailed calculations, that on a pro forma basis the Borrowers are projected to have a Fixed Charge Coverage Ratio as of the end of each of the twelve months immediately following such sale or disposition, measured in each case on a trailing twelve (12) month basis, of no less than 1.20 to 1.0, and (ix) the Net Proceeds received for the assets to be sold or disposed of are applied to prepay the Obligations in accordance with Section 2.11(c).
(i) sales of all of the Equity Interests in any Subsidiary (other than any Borrower or the Philippines Subsidiary) so long as (i) the consideration received for the Subsidiary to be so sold is at least equal to the fair market value of the assets owned by such Subsidiary, (ii) the Subsidiary to be so sold is not necessary or integral in connection with the business of any Borrower or any other Subsidiary, (iii) no Default has occurred and is continuing or would result from any such sale, (iv) both before and after giving effect to any such sale, the Borrowers shall have Excess Availability of at least 20% of the Aggregate Revolving Commitment, (v) immediately after giving effect to any such sale, the Borrowers shall have a Fixed Charge Coverage Ratio, recomputed on a trailing twelve (12) month pro forma basis for the most recent month for which financial statements have been delivered, of no less than 1.20 to 1.0, (vi) the Borrowers have provided the Administrative Agent with written confirmation, supported by reasonably detailed calculations, that on a pro forma basis the Borrowers are projected to have a Fixed Charge Coverage Ratio as of the end of each of the twelve months immediately following such sale, measured in each case on a trailing twelve (12) month basis, of no less than 1.20 to 1.0, and (vii) the Net Proceeds received for the assets to be sold or disposed of are applied to prepay the Obligations in accordance with Section 2.11(c); and
(j) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are soldSubsidiary) that are not permitted by any other paragraph of this Section 6.05,
(h) exchanges Section, provided that the aggregate fair market value of property for similar replacement property for fair value,
(i) all assets set forth on Schedule 6.05,
(j) the sale sold, transferred or other disposition otherwise disposed of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
reliance upon this paragraph (l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or shall not exceed $2,500,000 during any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business fiscal year of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. Company; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (pf) above) shall be made for fair market value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Asset Sales. The Neither Holdings nor the Borrower will, nor will not, and will not they permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04), except:
(a) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions, except (in each case, whether effected pursuant to a Division or otherwise):
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) (b) sales, transfers and dispositions to the Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) (c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,;
(d) (d) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (bii), (hviii), (lxii) and (nxiv) of Section 6.04,;
(e) (e) sale and leaseback transactions permitted by Section 6.06,;
(f) (f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,;
(g) (g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,, provided that the aggregate fair value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (g) shall not exceed $200,000,000 during the term of this Agreement (excluding any single transaction or series of related transactions that involves assets having a Fair Market Value of less than $2,500,000);
(h) (h) exchanges of property for similar replacement property for fair value,; and
(i) (i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. ; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (pf) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (ph) above) for at least 75% cash consideration, ; plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 35,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease lease, license or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the any Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the another Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory Inventory in the ordinary course of business, (ii) used, obsolete, worn out or surplus Equipment or property in the ordinary course of business and (iiiii) usedmarketing materials, damagedpamphlets, obsolete, worn out, negligible or surplus equipment or property presentation materials and similar assets in the ordinary course of business,;
(b) sales, transfers and dispositions of assets to the any Borrower or any Restricted Subsidiary (other than a Royalty Transaction Subsidiary; ), provided that (i) any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,6.09 and (ii) the foregoing clause (b) shall not permit any Specified Assets Dispositions to any Subsidiary that is not a Loan Party;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) Accounts in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment Permitted Investments and other investments permitted by clauses (b), (h), (li) and (nk) of Section 6.04,;
(e) sale Sale and leaseback transactions Leaseback Transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the any Borrower or any Restricted Subsidiary,;
(g) granting of Liens to the extent permitted under Section 6.02;
(h) transfer, abandonment or allowance to lapse of intellectual property that is immaterial or no longer used in or necessary for the conduct of the business;
(i) non-exclusive licenses and sublicenses of intellectual property granted by any Loan Party or any Subsidiary in the ordinary course of business; provided that in the event at any such licenses or sublicenses would result in any asset included in the determination of the Borrowing Base to be ineligible for inclusion in the Borrowing Base, not less than five (5) Business Days prior to any such sale, transfer, license or disposition, the Borrower Representative shall provide the Administrative Agent with an updated Borrowing Base Certificate which eliminates such ineligible assets from the determination of the Borrowing Base therein and demonstrates that, after giving pro forma effect to the exclusion of such assets from the Borrowing Base, that Availability is greater than zero; provided, however, that that the foregoing clause (i) shall not permit any Specified Assets Dispositions;
(j) sales, transfers and other dispositions consisting of divestitures required by applicable law or any Government Authority or other regulatory authority;
(k) sales, transfers and other dispositions of assets relating to Qutenza™ and NP-1998; provided that, not less than five (5) Business Days prior to any such sale, transfer or other disposition thereof, the Borrowers shall provide the Administrative Agent with an updated Borrowing Base Certificate which eliminates the Inventory relating to Qutenza™ and NP-1998 (as applicable) from the determination of the Borrowing Base therein and demonstrates that, after giving pro forma effect to the exclusion of such ineligible assets from the Borrowing Base, that Availability is greater than zero;
(l) the disposition of Permitted Royalty Transaction Assets from a Loan Party or a Subsidiary to a Royalty Transaction Subsidiary in connection with a Permitted Royalty Transactions; provided, however, that (i) both before and after giving pro forma effect to any such transaction, the Payment Conditions shall be satisfied, (ii) in the event that the assets so sold, transferred or disposed of are Accounts, Inventory or Equipment included in the determination of the Borrowing Base or any such sale, transfer, license or disposition would result in any asset included in the determination of the Borrowing Base to be ineligible for inclusion in the Borrowing Base, not less than five (5) Business Days prior to any such sale, transfer, license or disposition, the Borrower Representative shall provide the Administrative Agent with an updated Borrowing Base Certificate which eliminates such sold, transferred, disposed or ineligible assets from the determination of the Borrowing Base therein and demonstrates that, after giving pro forma effect to the exclusion of such assets from the Borrowing Base, that Availability is greater than zero; and (iii) the foregoing clause (l) shall not permit any Specified Assets Dispositions from a Loan Party or a Subsidiary to a Royalty Transaction Subsidiary;
(m) sales, transfers, licenses and other dispositions pursuant to or in connection with Permitted Product Development and Commercialization Agreements; provided that (i)(A) no Default or Event of Default then exists or would arise as a result of the entering into of such transaction and (B) either (x) after giving effect to the such transaction, the sum of Availability plus Qualified Cash, on a pro forma basis, is greater than $20,000,000 or (y) the Borrowers shall apply 100% of the net cash proceeds received from time to time in connection such sale, transfer, license and other disposition to repay the outstanding Revolving Loans until such time as, after giving effect to all such payments (and any subsequent repayments and re-borrowings), the sum of Availability plus Qualified Cash, on a pro forma basis, is greater than $20,000,000 and (ii) in the event that the assets so sold, transferred or disposed of are Accounts, Inventory or Equipment included in the determination of the Borrowing Base or any such sale, transfer, license or disposition would result in any asset included in the determination of the Borrowing Base to be ineligible for inclusion in the Borrowing Base, not less than five (5) Business Days prior to any such sale, transfer, license or disposition, the Borrower Representative shall provide the Administrative Agent with an updated Borrowing Base Certificate which eliminates such sold, transferred, disposed or ineligible assets from the determination of the Borrowing Base therein and demonstrates that, after giving pro forma effect to the exclusion of such assets from the Borrowing Base, that Availability is greater than zero; provided, however, that that the foregoing clause (m) shall not permit any Specified Assets Dispositions; and
(n) sales, transfers and other dispositions of assets (other than (w) Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph clause of this Section 6.05,
(h) exchanges of property for similar replacement property for fair value,
Section, provided that (i) assets set forth on Schedule 6.05,
no Default then exists or would result from any such sale, transfer or disposition, (jii) the sale aggregate fair market value of all assets sold, transferred or other disposition otherwise disposed of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
reliance upon this paragraph (n) surrender or waiver shall not exceed $5,000,000 during any fiscal year of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
Borrowers and (oiii) leases or subleases to third persons in the ordinary course event that the assets so sold, transferred or disposed of business that do not interfere are Accounts, Inventory or Equipment included in the determination of the Borrowing Base or any such sale, transfer, license or disposition would result in any material respect with asset included in the business determination of the Borrowing Base to be ineligible for inclusion in the Borrowing Base, the Borrowers shall, not less than five (5) Business Days prior to any such sale, transfer, license or disposition, the Borrower Representative shall provide the Administrative Agent with an updated Borrowing Base Certificate which eliminates such sold, transferred, disposed or any ineligible assets from the determination of its Restricted Subsidiariesthe Borrowing Base therein and demonstrates that, and
(p) the sale of Equity Interests in joint ventures after giving pro forma effect to the extent required by or made pursuant toexclusion of such assets from the Borrowing Base, customary buy/sell arrangements entered into in that Availability is greater than zero; provided, however, that that the ordinary course of business between the joint venture parties and sent forth in joint venture agreementsforegoing clause (n) shall not permit any Specified Assets Dispositions. provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (pf) above) shall be made for fair value and (other than those permitted as determined in good faith by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease Loan Party or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration)Subsidiary.
Appears in 1 contract
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary of the Subsidiaries to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest Interest, owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary of the Subsidiaries to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactionsSubsidiary, except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) salessales of inventory (including parcels in developed cemetery properties), transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible used or surplus equipment or property and Permitted Investments in the ordinary course of business,;
(b) sales, transfers and dispositions to the Borrower or any Restricted a Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,; and
(c) sales, transfers and dispositions of productstransfers, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,
(e) sale and leaseback transactions permitted by Section 6.06,
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,
(g) sales, transfers leases and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are soldaccounts receivable or inventory of Loan Parties) that are the sale of which is not otherwise permitted by any other paragraph clause of this Section 6.05,
(h) exchanges of property for similar replacement property for fair value,
6.06; provided that (i) the aggregate book value of all assets set forth on Schedule 6.05,
(j) the sale sold, transferred or other disposition otherwise disposed of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to reliance upon this clause (sc) shall not exceed 20% of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business Consolidated Total Assets of the Borrower or and its Subsidiaries as of the Effective Date (plus any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into increase in the ordinary course Consolidated Total Assets resulting from Permitted Acquisitions of business between Subsidiaries after the joint venture parties and sent forth Effective Date, with each such increase to be measured as of the date of such Permitted Acquisition) in joint venture agreements. provided that the aggregate, (ii) all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), pursuant to this clause (c), (f), (l), (n) and (p) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (niii) and (p) above) for at least 75% cash consideration, plus (for all if any such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by is made for aggregate consideration in excess of $20,000,000, such sale, transfer, lease or other disposition shall be made for at least 80% cash consideration provided the Borrower or any may sell only up to an aggregate of its Restricted Subsidiaries shall be deemed to constitute $100,000,000 of such assets where the cash consideration)component is less than 80%.
Appears in 1 contract
Samples: Revolving Credit Agreement (Service Corporation International)
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any assetasset (other than any Excluded Assets), including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,;
(b) sales, transfers and dispositions to the Borrower any Loan Party or any Restricted Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section Sections 6.04 and 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment Permitted Investments and other investments permitted by clauses (b), (h), (li) and (nk) of Section 6.04,;
(e) sale and leaseback transactions transactions, and other financing arrangements, permitted by Section Sections 6.01(n) and 6.06,, and any other sale of Real Property not involving the incurrence of Indebtedness;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower any Loan Party or any Restricted Subsidiary,;
(g) leases, subleases, licenses and sublicenses entered into in the ordinary course of business; and
(h) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,
Section; provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (h) exchanges of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do shall not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. exceed $30,000,000; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (pf) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Asset Sales. The Borrower will not, and will not permit any Restricted Subsidiary of the Subsidiaries to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)capital stock, nor will the Borrower permit any Restricted Subsidiary of the Subsidiaries to issue any additional Equity Interest shares of its capital stock or other ownership interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactionsSubsidiary, except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) salessales of inventory, transfers and dispositions of (i) inventory in the ordinary course of business and (ii) used, damaged, obsolete, worn out, negligible used or surplus equipment or property equipment, surplus leasehold improvements in connection with store closings and Permitted Investments in the ordinary course of business,;
(b) salessales of inventory, used or surplus equipment and real property in connection with the closing of the Borrower's warehouse and manufacturing facilities in Wilton, Maine, Reading, Pennsylvania, Augusta, Arkansas, Brinkley, Arkansas, and Geneva, Alabama;
(x) xales, transfers and dispositions to the Borrower or any Restricted a Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,; and
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment permitted by clauses (b), (h), (l) and (n) of Section 6.04,
(e) sale and leaseback transactions permitted by Section 6.06,
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,
(g) sales, transfers and other dispositions of assets (other than Equity Interests in capital stock of a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are soldSubsidiary) that are not permitted by any other paragraph clause of this Section 6.05,
Section, provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this clause (hc) exchanges of property for similar replacement property for fair value,
shall not exceed (i) assets set forth on Schedule 6.05,
(j) the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary $20,000,000 with respect to any secured Investment one such sale, transfer or other transfer of title disposition and (ii) $25,000,000 in the aggregate with respect to any secured Investment in default,
(l) all such sales, transfers and dispositions during the licensing term of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the salethis Agreement, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 7585% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of business and business, (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,, (iii) the abandonment or other disposition of immaterial intellectual property that is, in the reasonable judgment of the Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Borrower and its Subsidiaries taken as a whole and (iv) cash in connection with transactions not prohibited by the terms of this Agreement;
(b) sales, transfers and dispositions to the Borrower any Loan Party or any Restricted Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section Sections 6.04 and 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) in connection with the compromise, settlement or collection thereof consistent with past practice,thereof;
(d) sales, transfers and dispositions of property to the extent such property constitutes an investment Permitted Investments and other investments permitted by clauses (b), (h), (li) and (nk) of Section 6.04,;
(e) sale and leaseback transactions permitted by Section 6.06,;
(f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,;
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section 6.05,Section; provided that (i) the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (g) shall not exceed the greater of (x) $25,000,000 and (y) 5% of Consolidated Total Assets (at the time made) during the term of this Agreement and (ii) all sales, transfers and other dispositions made in reliance upon this paragraph (g) in respect of property for a purchase price in excess of $600,000 shall be made for fair value and for at least 75% cash consideration;
(h) exchanges leases or subleases of property for similar replacement property for fair value,
(i) assets set forth on Schedule 6.05,
(j) the sale real or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual personal property in the ordinary course of business or and in accordance with industry practice,the applicable Collateral Documents;
(mi) the sale, lease, conveyance, disposition transactions permitted by Section 6.03 or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, ; and
(pj) sales by the sale Loan Parties of Equity Interests in joint ventures Accounts to one or more financial institutions from time to time, to the extent required by or made permitted pursuant to, customary buy/sell arrangements entered into in to the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. provided that all sales, transfers, leases and other dispositions permitted hereby ABL Documents (other than those permitted by paragraphs (b), (c), (f), (l), (n) and (p) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all each such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash considerationan “Approved Account Sale”).
Appears in 1 contract
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary of the Subsidiaries to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest of any Subsidiary of the Company owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the any Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary Subsidiary, except: 135 WBD (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04US) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions, except (in each case, whether effected pursuant to a Division or otherwise):
52391250 AMERICAS 108683049 (a) sales, transfers and dispositions (other than to any Borrower or any Subsidiary) of (i) inventory in the ordinary course of business business; and (ii) used, damaged, obsolete, worn out, negligible out or surplus equipment or property in the ordinary course of business,
; (b) sales, transfers and dispositions to the any Borrower or any Restricted Subsidiary; provided that (i) if any such sales, transfers or dispositions involving are in the form of any Investment, such sales, transfers or dispositions shall be made in compliance with Section 6.04(c), (o), (q) or (t) and (ii) any such sales, transfers or dispositions to a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,
; (c) sales, transfers and dispositions of products, services or (i) accounts receivable (including at a discount) or note receivables in connection with the compromise, settlement or collection thereof consistent and (ii) Investments received in connection with past practice,
the bankruptcy or reorganization of, or settlement of disputes with, or judgments against, or foreclosure or deed in lieu of foreclosure with respect to, customers and suppliers of the Borrowers or the Subsidiaries; (d) sales, transfers and dispositions of property to the extent such property constitutes an investment (i) cash and Permitted Investments and other investments permitted by clauses (beach of Section 6.04(a)(ii), (he), (lf)(ii), (f)(iii), (m) or (r), (ii) Investments described in items 2 through 7 of Schedule 6.04(b) and (niii) of Section 6.04,
Investments which were Permitted Investments when made, but that no longer constitute Permitted Investments, provided that any such Investment is sold, transferred and disposed as soon as reasonably practicable after the date the Company learns that such Investment no longer constitutes Permitted Investments; (e) sale and leaseback transactions permitted by Section 6.06,
; (f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the any Borrower or any Restricted Subsidiary,
; (g) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary wholly-owned Subsidiary, unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section; provided that (i) the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (g) shall not exceed $100,000,000 during any Fiscal Year and (ii) at the time of and immediately after giving effect to any such sale, transfer or other disposition or a commitment of any Borrower or Subsidiary with respect thereto, whichever comes first, on a Pro Forma Basis, (A) no Default or Event of Default shall have occurred and be continuing and (B) if such sale, transfer or other disposition is of an operating facility, line of business or Subsidiary the Borrowers shall be in compliance with the covenants set forth in Sections 6.12 and 6.13 (for the Test Period ending immediately preceding such sale, transfer or other disposition for which financial statements have been delivered pursuant to Section 6.05,
5.01(a) or (b)); 136 WBD (US) 52391250 AMERICAS 108683049 (h) exchanges sales, transfers, leases or other dispositions by the Company or any of property for similar replacement property for fair value,
its Subsidiaries of assets that were acquired in connection with a Permitted Acquisition (other than Equity Interests in a wholly-owned Subsidiary, unless all Equity Interests in such Subsidiary are sold); provided that any such sale, transfer, lease or other disposition shall be made or contractually committed to be made within 270 days of the date such assets were acquired by the Company or such Subsidiary; (i) assets set forth on Schedule 6.05,
(j) licensing and cross-licensing arrangements involving any intellectual property of the sale or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower Company or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property Subsidiaries in the ordinary course of business or in accordance with industry practice,
business; (mj) the salesales, leasetransfers, conveyanceleases, disposition or and other transfer dispositions of (a) the Equity Interests ofproperty that is exchanged, or any Investment inthe proceeds thereof are applied, any Unrestricted Subsidiary in each case, in a substantially contemporaneous acquisition of similar replacement property; (k) leases, subleases, licenses or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) sublicenses of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons property in the ordinary course of business that do not materially interfere in any material respect with the business of the Borrower or any of Company and its Restricted Subsidiaries, and
; (pl) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. provided that all sales, transfers, leases and other dispositions permitted hereby of property in the ordinary course of business consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination of the Company and in the exercise of its reasonable business judgment, are not material to the conduct of the business of the Company and its Subsidiaries; (other than those permitted by paragraphs (b), (c), (f), (l), (nm) and (p) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of Investments in joint ventures and non-cash consideration wholly owned Subsidiaries of the Company to the extent required by, or made pursuant to, buy and sell arrangements or similar arrangements between the parties holding the Equity Interests of such Persons set forth in the amount joint venture arrangements or similar binding agreements; (n) sales, transfers, leases and other dispositions of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received real property and related assets in the ordinary course of business in connection with relocation of officers or employees of the Company and the Subsidiaries; (o) voluntary terminations of Swap Agreements; (p) the expiration of any property received option to buy or sell any real or personal property; and (q) Liens permitted by Section 6.02, Investments permitted by Section 6.04 and Restricted Payments permitted by Section 6.08; (r) sales of Receivables and Related Assets in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).connection with Permitted Factoring Program; and
Appears in 1 contract
Asset Sales. The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose (whether effected pursuant to a Division or otherwise) of any asset, including any Equity Interest owned by it (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than the Borrower a Restricted Subsidiary)it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary in compliance with Section 6.04) involving aggregate payments or consideration for assets having a Fair Market Value in excess of $2,500,000 for any individual transaction or series of related transactions), except (in each case, whether effected pursuant to a Division or otherwise):except:
(a) sales, transfers and dispositions of (i) inventory Inventory in the ordinary course of business, (ii) used, obsolete, worn out or surplus Equipment or property in the ordinary course of business, (iii) property no longer used or useful to the business of the Loan Parties and their respective Subsidiaries in the ordinary course of business and (iiiv) used, damaged, obsolete, worn out, negligible or surplus equipment or real property in to the ordinary course extent that (A) such property is exchanged for credit against the purchase price of business,similar replacement property or (B) the proceeds of such sale, transfer or disposition are reasonably promptly applied to the purchase price of such replacement property;
(b) sales, transfers and dispositions of assets to the Borrower or any Restricted Subsidiary; , provided that any such sales, transfers or dispositions involving a Non-Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09,;
(c) sales, transfers and dispositions of products, services or accounts receivable (including at a discount) Accounts in connection with the compromise, settlement or collection thereof consistent with past practice,
(d) including, without limitation, sales, transfers and dispositions of property Accounts in connection with supply chain financing on terms and conditions acceptable to the extent such property constitutes an investment permitted by clauses (bAdministrative Agent in its sole discretion), (h), (l) and (n) of Section 6.04,;
(ed) sale Sale and leaseback transactions Leaseback Transactions permitted by Section 6.06,;
(fe) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary,;
(f) the licensing, on a non-exclusive basis, of patents, trademarks, copyrights, and other intellectual property rights in the ordinary course of business;
(g) the granting of any Lien permitted under Section 6.02;
(h) sales, transfers and dispositions to the extent constituting investments permitted under Section 6.04;
(i) sales, transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests in such Restricted Subsidiary are sold) that are not permitted by any other paragraph clause of this Section 6.05,
(h) exchanges Section; provided that, the aggregate fair market value of property for similar replacement property for fair value,
all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (i) assets set forth on Schedule 6.05,shall not exceed $5,000,000 during any fiscal year of the Borrower; and
(j) any other sales, transfers or other dispositions of assets so long as (i) such sales, transfers or other dispositions do not, either individually or in the sale aggregate, constitute a sale, transfer or disposition of all or substantially all of the assets of the Borrower and its Subsidiaries and (ii) the Payment Condition shall be satisfied with respect to each such sale, transfer or other disposition of Permitted Investments,
(k) the sale or disposition of any assets or property received as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default,
(l) the licensing of intellectual property in the ordinary course of business or in accordance with industry practice,
(m) the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Investments (other than Investments in any Restricted Subsidiary) made pursuant to clause (s) of Section 6.04,
(n) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind,
(o) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries, and
(p) the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements. assets; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b), (c), (fe), (l), (ng) and (ph) above) shall be made for fair value and (other than those permitted by paragraphs (b), (d), (h), (l), (n) and (p) above) for at least 75% cash consideration, plus (for all such sales, transfers, leases and other dispositions permitted hereby) an aggregate additional amount of non-cash consideration in the amount of $20,000,000 (it being understood that for purposes of paragraph (a) above, accounts receivable received in the ordinary course and any property received in exchange for used, obsolete, worn out or surplus equipment or property and any non-cash consideration that was actually converted into cash within 6 months following the applicable sale, transfer, lease or other disposition by the Borrower or any of its Restricted Subsidiaries shall be deemed to constitute cash consideration).
Appears in 1 contract
Samples: Credit Agreement (TimkenSteel Corp)
