Disposition of Assets. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, make any Asset Sale except: (i) Asset Sales in the ordinary course of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets in the ordinary course of business; (ii) the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent): (A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange; (B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and (C) such other additional financial information as the Administrative Agent shall reasonably request; (iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii); (iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements; (v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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; (vii) the disposition of any Hedge Agreement; (viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b); (ix) dispositions of Investments in cash and Cash Equivalents; (A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary; (xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC; (xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith; (xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2; (xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause
Appears in 1 contract
Disposition of Assets. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, make any Asset Sale exceptSale; provided, however, that the Borrower and its Subsidiaries, or any of them, may make Asset Sales if such Asset Sales:
(i) Asset Sales are in the ordinary course of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets in the ordinary course of business;,
(ii) the concurrent consist of assets in exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents property or Station operating assets other consideration at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faithboard of directors of the Borrower; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five ten (510) Business Days days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1x) certifying that the board of directors has determined that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2y) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) evidencing that the pro forma Leverage Ratio after giving effect property or other consideration received by the Borrower and its Subsidiaries is at least equal to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, fair market value of the assets so exchanged and (3z) certifying attaching any other information considered by the board of directors and evidencing the board of directors’ analysis of the attached calculations in making the determination that no Default the property or Event other consideration received by the Borrower and its Subsidiaries is at least equal to the fair market value of Default exists or would be caused by such exchange; andthe assets so exchanged;
(C) such other additional financial information documentation as the Administrative Agent shall reasonably request;; provided further, that any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii),
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender)do not exceed $25,000,000 in the aggregate per fiscal year, so long as as:
(A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause and
(B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) proceeds of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case aggregate amount of any cash or Cash Equivalents that are received by the Borrower or any Subsidiary pursuant to an Asset Sale pursuant to a Spectrum Tender that results made during such fiscal year and permitted under Section 7.4(a)(ii) shall be included in determining the First Lien Leverage Ratio, calculated after giving pro forma effect to such amounts of Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Sales permitted under this Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales7.4(a)(iii), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);,
(iv) Asset Sales in the form consist of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;,
(viv) consist of leases, subleases, easements subleases or licenses granted by the Borrower or any of its Restricted Subsidiaries 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
(viivi) arise on account of the disposition of any Interest Rate Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause.
Appears in 1 contract
Disposition of Assets. The Borrower shall notSell or otherwise dispose of any assets (including the sale or issuance of any capital stock of any Subsidiary), and shall not permit any of its Restricted Subsidiaries towhether now owned or hereafter acquired, make any Asset Sale except:
except for (i) Asset Sales the sale or other disposition of obsolete or worn out property in the ordinary course of business; (ii) the sale of inventory in the ordinary course of business; (iii) sales or other dispositions permitted by clauses (iv) and (v) of Section 6.02; (iv) sale or disposition of assets constituting all or a portion of the Automotive Holdings Group (but not including any related foreign assets except for de minimis foreign assets ); (v) the sale, issuance or contribution of any Subsidiary's capital stock to the Borrower or to any Wholly-Owned Guarantor or, in the case of a sale, issuance or contribution of capital stock of a Foreign Subsidiary that is not a first-tier Foreign Subsidiary, to any Wholly-Owned Subsidiary of the Borrower; (vi) sales or other dispositions consisting of the transfer of rights in Intellectual Property to third parties and/or routine patent portfolio deletions, in each case in the ordinary course of business consistent with past practice; (vii) sales or other dispositions of accounts receivables and other related assets held for resale in connection with any Foreign Receivables Financing, so long as such Foreign Receivables Financing is otherwise permitted under this Agreement (including pursuant to Section 6.01 and Section 6.03); (viii) intercompany sales or contributions among the Borrower and the Guarantors; (ix) dispositions described on Schedule 6.10; and (x) any other sale or disposition of property not otherwise expressly permitted by this Section 6.10 (A) having a fair market value of less than $500,000 or (B) having a fair market value of $500,000 or more, in which case such dispositions shall not exceed $100,000,000 in the ordinary course aggregate for any fiscal year of business the Borrower; provided that compliance with the restrictions set forth in this Section 6.10 shall not be required if, after giving effect to any transaction or activity otherwise subject to this Section 6.10, the trade Facility Availability Amount would be equal to or greater than $500,000,000, except that in or replacement of assets in the ordinary course of business;
(ii) the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which no event may the Borrower or any Restricted Subsidiary receives cashGuarantor sell or otherwise transfer any assets, Cash Equivalents whether now owned or Station operating assets at least equal hereafter acquired, to a Non-Filed Domestic Entity if, after giving effect thereto, the aggregate fair market value of the all assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid sold or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal Guarantors to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not Filed Domestic Entities would exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) 15,000,000 during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation term of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Guaranty Agreement (Delphi Corp)
Disposition of Assets. The (i) If, after the Agreement Date, the Borrower shall not, and shall not permit or any of its Restricted Subsidiaries toshall sell, make transfer or otherwise dispose of (including, without limitation, by way of condemnation or casualty to the extent not covered by insurance) any Asset Sale except:
(i) Asset Sales Assets with Net Proceeds in excess of $1,000,000 in the ordinary course aggregate during the period from the Agreement Date through the Final Maturity Date (including, without limitation, any Equity Interests in any Unrestricted Subsidiary, but not including (A) the sale of business obsolete equipment and inventory, (B) the sale, transfer or other disposition of assets held for resale in the ordinary course fixed Assets that are replaced by property of business or the trade in or replacement of assets substantially equivalent value in the ordinary course of business;
, (iiC) the concurrent exchange sale or lease of a television broadcast station databases, software, subscriber lists or office or laboratory space, or the licensing of long-term Station operating assets or cash (including intellectual property, in each case in the Capital Stock ordinary course of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrombusiness, (wD) the aggregate amount sale of all cash and Cash Equivalents received by Equivalents, (E) the Borrower sale or any Restricted Subsidiary discount of accounts receivable in connection with such asset exchanges compromise or collection (but not in connection with accounts receivable securitizations or similar transactions), and (F) the sale of any Assets by any member of the InternetCo Group to the extent that the Borrower shall not exceed thirtyhave certified to the Agents that the Net Proceeds received in connection therewith shall have simultaneously been re-five invested in the business of the InternetCo Group), one hundred percent (35100%) of the aggregate consideration for Net Proceeds from such asset exchangesale, transfer or other disposition shall, (xI) in the aggregate amount case of Net Proceeds received by the Borrower, be applied on the date of receipt thereof, and (II) in the case of Net Proceeds received by any Subsidiary of the Borrower, be promptly distributed on a pro rata basis to all cash of such Subsidiary's equity holders and Cash Equivalents paid by on the date of the Borrower's receipt of its pro rata share of any such Net Proceeds, be applied, in either case, to permanently reduce the Loans pursuant to Section 2.7(d) hereof. If, after the Agreement Date, the Borrower or any of its Restricted Subsidiaries shall receive Net Proceeds in connection with such asset exchange shall not exceed thirty-five the eTesting Labs Disposition, fifty percent (3550%) of such Net Proceeds shall be applied on the aggregate amount paid date of receipt thereof to permanently reduce the Loans pursuant to Section 2.7(d) hereof, and the Borrower and its Subsidiaries may retain the remaining fifty percent (50%) of such Net Proceeds as eTesting Sale Proceeds and may use or transferred by reinvest such Net Proceeds for any purpose permitted under this Agreement.
(ii) If, after the Agreement Date, the Borrower or any of its Restricted Subsidiaries shall receive (A) Net Proceeds of insurance (including, without limitation, by way of a casualty or condemnation covered by insurance or the over-funding of any Plan or Multiemployer Plan), in connection with the aggregate during the term of this Agreement, in excess of $5,000,000, 100% one hundred percent (100%) of such asset exchangeNet Proceeds, or (B) Net Proceeds of "key-man" life insurance, fifty percent (50%) of such Net Proceeds, shall, in each case, (yI) in the case of Net Proceeds received by the Borrower, be applied on the date of receipt thereof, and (II) in the case of Net Proceeds received by any cash or Cash Equivalents that are received Subsidiary of the Borrower, be promptly distributed on a pro rata basis to all of such Subsidiary's equity holders and on the date of the Borrower's receipt of its pro rata share of any such Net Proceeds, be applied, in either case, be applied to permanently reduce the Loans pursuant to Section 2.7(d) hereof; provided, however, that, at the Borrower's election, such Net Proceeds (other than the fifty percent (50%) of the Net Proceeds of "key-man" life insurance which shall be required in any case to repay the Loans) may be reinvested by the Borrower or any such Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior their respective businesses to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying extent that the property or other consideration received by aggregate Purchase Price with respect to such reinvestment shall not exceed the Borrower and its Restricted Subsidiaries is at least equal to the fair market value lesser of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or Net Proceeds and (y) that $10,000,000 in the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than aggregate during the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event term of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender)this Agreement, so long as (A) no Default or Event of Default shall have occurred and be continuing then exists or would result therefrom, be caused thereby and (B) at least seventythe Borrower or such Subsidiary shall have concluded (or entered into a definitive commitment for) such reinvestment within three hundred sixty-five percent (75%365) of the consideration received days, in each such Asset Sale (or series case from the date of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of its receipt of such Designated Non-Cash Consideration and determined after giving effect to Net Proceeds.
(iii) In the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by event the Borrower in good faith, without giving effect elects to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant exercise its right to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the reinvest Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (Dunder Section 2.7(b)(ii), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay so notify the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be Administrative Agent not less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior after knowledge by the Borrower of the occurrence of the loss covered by such insurance, and shall remit, or cause the applicable Subsidiary to the entry into any Station Sharing Arrangement (or remit, such later time as may be approved by Net Proceeds upon receipt thereof to the Administrative Agent to reduce the outstanding principal balance of the Revolving Loans (but not the Term Loans nor the amount of the Revolving Commitment). Any amount in its sole discretion), excess of the then outstanding balance of the Revolving Loans shall be held in trust in an interest-bearing cash collateral account with the Administrative Agent or an Affiliate thereof (a "Net Proceeds Trust") for the benefit of the Borrower, to be applied to the ultimate reinvestment, as hereinafter provided. To the extent that the applicable Borrower Party shall not have receivedcompleted the reinvestment of such Net Proceeds within three hundred sixty-five (365) days from the date of its receipt thereof (for whatever reason, including the occurrence of a Default or Event of Default hereunder), or the cash Purchase Price of such reinvestments shall be less than such Net Proceeds, the amount of Net Proceeds previously applied to reduce the outstanding balance of the Revolving Loans and any funds held in the Net Proceeds Trust relating to such sale shall be re-applied to the Loans in the manner set forth in Section 2.7(d).
(iv) Amounts in any Net Proceeds Trust shall also be subject to a valid and perfected first priority Lien in favor of the Administrative Agent (for the benefit of the Credit Parties to secure the Obligations), pursuant to a deposit pledge agreement or other security agreement in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause.
Appears in 1 contract
Samples: Credit Agreement (Ziff Davis Intermediate Holdings Inc)
Disposition of Assets. The Without the prior written consent of the Term Agent, no Borrower shall, and no Borrower shall not, and shall not suffer or permit any of its Restricted Subsidiaries to, make sell, lease, convey or otherwise dispose of (whether in one transaction or in a series of transactions) of any Asset Sale Property (including the Stock or Stock Equivalents of any Subsidiary of any Borrower, whether in a public or a private offering or otherwise, and accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing (including by an allocation of assets among newly divided limited liability companies pursuant to a “plan of division”), except:
(ia) Asset Sales Dispositions of Inventory, leases of broadcast subchannels, broadcast tower space and broadcast spectrum, excluding FCC Licenses, in the ordinary course Ordinary Course of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets in the ordinary course of businessBusiness;
(iib) to the concurrent exchange extent constituting Dispositions, licensing of a television broadcast station Intellectual Property expressly permitted under Section 5.1(f);
(c) Dispositions of worn-out, obsolete or surplus equipment, all in the Ordinary Course of long-term Station operating assets or cash Business;
(including the Capital Stock d) Dispositions of a Person which owns long-term Station operating assets)Property by any Loan Party to another Loan Party;
(e) Subject to Section 1.7, for which the Borrower Dispositions of Property (other than FCC Licenses, material Intellectual Property or any Restricted Subsidiary receives cash, Cash Equivalents Property or asset that is necessary to operate any Station operating assets at least equal not otherwise permitted under this Section 5.2) in an amount up to $2,400,000 in the fair market value aggregate in any Fiscal Year and no more than $6,000,000 in the aggregate during the term of the assets this Agreement so exchanged long as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefromarise therefrom and the Borrowers are in compliance with the financial covenants set forth in Section 5.22, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) measured as of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) last day of the aggregate amount paid or transferred by Applicable Reference Period at such time (but with Liquidity measured as of the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii)date of, and (zimmediately after giving effect to, such Disposition) at least five (5) Business Days prior to and determined on a pro forma basis as if such Disposition had occurred on the completion first day of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchangeApplicable Reference Period;
(Bf) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying Dispositions that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, constitute Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;5.4; and
(xivg) so long as applied in accordance with Section 1.7(b), Dispositions resulting from casualty or condemnation proceedings. For the sale avoidance of doubt, in no event may an FCC License Holder Dispose of an FCC License (except where replaced by a renewed or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that modified main Station license for such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clausestation).
Appears in 1 contract
Samples: Second Lien Term Loan Agreement (Mediaco Holding Inc.)
Disposition of Assets. The Borrower shall notSell, and shall not lease or otherwise dispose of any of, or permit any Subsidiary of such Obligor to sell, lease or otherwise dispose any of, its Restricted Subsidiaries toProperties, make including any Asset Sale except:
disposition of Property as part of a sale and leaseback transaction, to or in favor of any Person, except (i) Asset Sales in the ordinary course sales of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets inventory in the ordinary course of business;
, (ii) replacements of equipment that is substantially worn, damaged or obsolete with equipment of like kind, function or value, provided that the concurrent exchange replacement equipment shall be acquired prior to or concurrently with any disposition of a television broadcast station or the equipment that is to be replaced, the replacement equipment shall be free of long-term Station operating assets or cash Liens (including the Capital Stock of a Person which owns long-term Station operating assetsother than Permitted Liens), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) sales or other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender)dispositions of Property by such Obligor or such Subsidiary, so long as provided that (A) no Default or Event of Default shall have has occurred and be is continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of purchase price (x) $75,000,000 and consists of at least 75% cash consideration, (y) one percent (1.0%) is payable on the date of Consolidated Total Assets (calculated at the time of receipt consummation of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, sale and (Dz) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount is equal to the fair market value of such assets the Property sold, as determined in good faith at by the time Board or the board of directors of such transfer) Subsidiary, as the case may be and (C) the transfer by aggregate net book value of all Property sold pursuant to this subclause (iii) during any Non-Guarantor fiscal year shall not exceed $1,000,000 and (iv) other sales or dispositions of Property of such Obligor or such Subsidiary to the extent that the net proceeds realized therefrom are used, within 180 days after the date of its assets consummation of such disposition, to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus purchase capital assets no longer used or usable in the business of the Borrower useful by such Obligor or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business such Subsidiary in the ordinary course and of such Obligor's or such Subsidiary's business, (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iiiB) are complied applied to outstanding Senior Indebtedness in accordance with in connection therewith;
the terms thereof or (xiiiC) to the extent constituting Asset Salesnot used to prepay Senior Indebtedness in permanent reduction thereof or to permanently reduce the commitments thereunder, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) prepay the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is Notes in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to manner set forth in Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause3.6.
Appears in 1 contract
Samples: Securities Purchase Agreement (Eagle Pacific Industries Inc/Mn)
Disposition of Assets. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, make Make any Asset Sale exceptDisposition, except the following:
(ia) Asset Sales in the ordinary course of business of assets held for resale in the ordinary course of business or the trade in or any replacement of assets in Equipment that is worn, damaged or obsolete with Equipment of like function and value, if the ordinary course replacement Equipment is acquired substantially contemporaneously with such disposition and is free of businessLiens;
(iib) a sale of Inventory in the Ordinary Course of Business;
(c) termination of a lease of real or personal Property that is not necessary for the Ordinary Course of Business, could not reasonably be expected to have a Material Adverse Effect and does not result from an Obligor’s default;
(d) the concurrent exchange sale of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), Property for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to consideration not less than the fair market value thereof and (i) with respect to sales not covered by clauses (ii) through (v) below, having an aggregate fair market value not in excess of $15,000,000 in any twelve consecutive month period; (ii) in connection with the closure or relocation of any facilities; (iii) such sale is of the assets so exchanged as determined by or the Equity Interests of the NMHG Mauritius Entities or, prior to the Australian Borrower Activation Date, the Australian Subsidiaries; (iv) such sale is of the assets or Equity Interests of any Subsidiary engaged in good faithretail operations that is neither an Obligor nor a Pledged Entity; provided that or (v) no Default or Event such sale is of Default then exists or would result therefromthe plants and/or Property described on Schedule 1.1(d); provided, however, that (%6) none of the Property subject to sales permitted above shall constitute Collateral, (w%6) the aggregate amount of all any non-cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with consideration resulting from such asset exchanges sale (which shall be limited to not exceed thirtymore than twenty-five percent (3525.0%) of the aggregate total consideration for such asset exchangesale) shall, to the extent received by an Obligor, be pledged or assigned to Agent pursuant to the applicable Security Documents to which it is a party, (x%6) with respect to any such sale by a Borrower, such Borrower applies the aggregate amount of all cash and Cash Equivalents paid by Net Proceeds thereof to the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), Loans and (z%6) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form before and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchangesale, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii)continuing;
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viiie) the transfer of assets to the Borrower or Property from any other Credit Party pursuant Subsidiary to any other transaction permitted pursuant to Section 7.4(b)Obligor, among any of the Obligors, or among any Subsidiaries not constituting Obligors, in each case, otherwise in accordance with the Loan Documents;
(ixf) Investments and dispositions of Investments in cash and Cash EquivalentsEquivalents permitted pursuant to Section 10.2.4(a);
(Ag) the transfer of Property permitted in connection with transactions permitted in Section 10.2.7;
(h) the sale of accounts receivable and related assets under any receivables factoring, discounting facility or receivables assignment facility by any Credit Party Foreign Subsidiary that is not a Borrower in an aggregate amount not to exceed $10,000,000 outstanding at any time;
(i) Asset Dispositions of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that Property not constituting Collateral in connection with any such transfer, such Credit Party shall sale-leaseback transaction not pay more than an amount equal to exceed $100,000,000 (less any Purchase Money Debt outstanding under Section 10.2.1(d)) in the fair market value aggregate during the term of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;this Agreement; and
(xij) additional Asset Dispositions of Property other than Inventory and Accounts (A) and, following the sale of obsoletePP&E Component Implementation Date, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries Equipment and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%Real Estate) of the consideration received Obligors which may be approved by Agent in each such Asset Sale (or series its sole discretion and which result in Net Proceeds of related Asset Sales) is not more than $5,000,000 in the form aggregate and $2,000,000 in any single transaction in any Fiscal Year. Notwithstanding the foregoing, any disposition of cash or Cash Equivalents and Equipment that is subject to a fixed charge under any Foreign Security Document to which any UK Domiciled Obligor is a party shall require the Net Proceeds (Asset Sales) consent of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseAgent.
Appears in 1 contract
Samples: Loan, Security and Guaranty Agreement (Hyster-Yale Materials Handling, Inc.)
Disposition of Assets. The Borrower shall notwill not directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one transaction or a series of 11/27/00 364 Day Credit Agreement 31 32 transactions) any property (including accounts and shall not permit notes receivable, with or without recourse) or enter into any agreement to do any of its Restricted Subsidiaries tothe foregoing, make any Asset Sale except:
(ia) the Alleghany Asset Sales in the ordinary course Management Sale;
(b) dispositions of business of assets held for resale in the ordinary course of business inventory, or the trade in used, worn-out or replacement of assets surplus equipment, all in the ordinary course of business;
(iic) the concurrent exchange sale of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal equipment to the fair market extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the proceeds of such sale are applied with reasonable promptness to the purchase price of such replacement equipment; and
(d) other dispositions of property during the term of this Agreement whose net book value in the aggregate does not exceed 50% of the Borrower's total consolidated assets so exchanged as determined by shown on its balance sheet for its most recent prior fiscal quarter; provided, that, absent the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) written consent of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchangeMajority Banks, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification not sell, lease, transfer or otherwise dispose of such exchange describing the assets to be exchanged and the proposed closing date any of the exchange;
(B) at capital stock of Mineral Holdings or AUL London, except that the request written consent of the Administrative Agent (in its sole discretion)Majority Banks to such sale, a certificatelease, executed by an Authorized Signatory transfer or other disposition of any of the Borrower, (1) certifying that the property capital stock of Mineral Holdings or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either AUL London shall not be required (x) the Borrower’s pro forma compliance for any issuances of capital stock by Mineral Holdings or AUL London in connection with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) employee compensation and incentive arrangements or (y) to the extent that the pro forma Leverage Ratio after giving effect proceeds therefrom are used to reduce ratably the Revolving Commitment under this Agreement and the "Revolving Commitment" under the Five Year Credit Agreement (whereupon the outstanding unpaid principal balance of each Note (whether under this Agreement or under the Five Year Credit Agreement) given in favor of a Bank shall be prepaid in an amount equal to the excess of the outstanding unpaid principal balance of such exchange shall not be greater than Note over the Leverage Ratio immediately prior to giving effect to Revolving Commitment of such exchange, Bank as so reduced in accordance with Sections 2.7 and (3) certifying that no Default or Event 2.17 of Default exists or would be caused by such exchange; and
(C) such other additional financial information as this Agreement and the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum TenderFive Year Credit Agreement), so long as (A) no Default or Event of Default nor shall have occurred and be continuing or would result therefromthe Borrower, (B) at least seventy-five percent (75%) absent the written consent of the consideration received in each such Asset Sale (Majority Banks, permit Mineral Holdings or series AUL London, directly or indirectly to sell, lease, transfer or otherwise dispose of related Asset Sales) is in the form of cash any properties or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received thatassets, when taken together with all other Designated Non-Cash Consideration previously received and then outstandingtangible or intangible, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly now owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Businesshereafter acquired, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory representing more than 50% of the Borrower), shall not exceed fifteen percent (15%) total consolidated operating assets of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (Mineral Holdings or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvestedAUL London, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans be as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined shown on their respective balance sheets for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clausemost recent prior fiscal quarter.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Alleghany Corp /De)
Disposition of Assets. The Borrower BHI shall not, and nor shall not it suffer or permit any of its Restricted Subsidiaries to, make directly or indirectly, (x) issue any equity interests of any Subsidiary to any Person which is not BHI or one of its Wholly-Owned Subsidiaries or (y) sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any property, including accounts and notes receivable, with or without recourse (each, an "Asset Sale Disposition"), or enter into any agreement to do any of the foregoing, except:
(ia) Asset Sales in the ordinary course dispositions of business of assets held for resale in the ordinary course of business used, worn-out or the trade in surplus equipment or replacement of assets unused intellectual property, all in the ordinary course of business;
(iib) the concurrent exchange sale of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal equipment to the fair market value extent that such equipment is exchanged for credit against the purchase price of replacement equipment, or the assets so exchanged as determined proceeds of such sale are within 180 days of receipt thereof applied to the purchase price of such replacement equipment;
(c) Asset Dispositions by the Borrower in good faith; provided any Subsidiary to any Wholly-Owned Subsidiary that is a Loan Party;
(vd) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower BHI or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), may enter into operating leases and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information licenses as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising lessor in the ordinary course of business in connection with the compromise or collection thereofwhich are not substantially equivalent to sales;
(vie) leases, subleases, easements or licenses granted by the Borrower BHI or any Subsidiary may enter into assignments and licenses of its Restricted Subsidiaries to third Persons intellectual property in the ordinary course of business business; and
(f) dispositions by BHI and its Subsidiaries not otherwise permitted hereunder which are made for fair market value; provided, that do not interfere (i) at the time of any disposition, no Event of Default shall exist or shall result from such disposition, (ii) at least 75% of the aggregate sales price from such dispositions shall be paid in cash, and (iii) the aggregate value of all assets so sold by BHI and its Subsidiaries in any material respect with fiscal year shall not exceed the business Equivalent Amount of the Borrower $2,000,000;
(g) sale or discounts of accounts receivable by BHI or any of its Restricted SubsidiariesSubsidiaries in the ordinary course of collection;
(viih) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction sell Investments permitted pursuant to under Section 7.4(b8.04(a);
(ixi) transactions permitted under Section 8.03; and
(j) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business inventory in the ordinary course of business. In the event any Collateral is sold as permitted by this Section 8.02, such Collateral shall be sold free and (2) be required to remain in future compliance with Applicable Laws and final orders clear of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition created by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents Collateral Documents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, Collateral Agent shall be authorized to take any actions and execute and deliver any lien release documents as may be necessary in order to effect the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseforegoing.
Appears in 1 contract
Disposition of Assets. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, make any Asset Sale except:
(i) Asset Sales in the ordinary course of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets in the ordinary course of business;
(ii) the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseclause (xiv) shall prohibit the transfer of assets to a divestiture trust in accordance with Applicable Laws or a final order of the FCC so long as the requirements of Section 2.6(b)(iii) are complied with when such assets are released from such divestiture trust);
(xv) [reserved];
(xvi) the sale or other disposition by the Borrower or a Restricted Subsidiary of real property, equipment or other related assets (but in no event including any FCC License or the Capital Stock of any License Sub) in connection with Tax Advantaged Transactions; provided that the aggregate fair market value of the property and assets sold or disposed of pursuant to this clause (xvi) shall not exceed an aggregate amount equal to the greater of (x) $75,000,000 and (y) two percent (2.0%) of Consolidated Total Assets (calculated at the time of such sale or other disposition); and
(xvii) any disposition of Securitization Assets or Receivables Assets, or participations therein, in connection with any Qualified Securitization Financing or Receivables Facility.
Appears in 1 contract
Disposition of Assets. The Borrower Company shall not, and shall not suffer or permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Asset Sale property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except:
(ia) Asset Sales in the ordinary course dispositions of business of assets held for resale in the ordinary course of business inventory, or the trade in used, worn-out or replacement of assets surplus rail, ballast, track components and equipment, all in the ordinary course of business;
(iib) the concurrent exchange sale of a television broadcast station equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the proceeds of long-term Station operating assets such sale are reasonably promptly applied to the purchase price of such replacement equipment;
(c) dispositions of inventory or cash (including equipment by the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower Company or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the Company or any Restricted Subsidiary pursuant to reasonable business requirements (provided that Required Restricted Subsidiaries may not transfer any material amounts of property pursuant to this subsection 8.2(c) to any Person other than another Required Restricted Subsidiary);
(d) any sale of equipment made for fair market value of the assets so exchanged as determined by the Borrower in good faithvalue; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (Bi) at the time of entering into sale, a Default or an Event of Default shall not exist or result from such Station Sharing Arrangement disposition, (ii) the aggregate sales price from such sale shall be paid in cash, and after giving effect thereto(iii) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Company or a Restricted SubsidiariesSubsidiary or, in each case determined if there is a tangible economic benefit for the then applicable Reference PeriodCompany as a result of doing so, shall be attributable to Stations that are subject to Station Sharing Arrangementsan Unrestricted Subsidiary, leases such property from the new owner immediately after such sale and such lease has a term of not less than five years;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ixe) dispositions of Investments in cash and Cash Equivalents;up to $70,000,000 trade receivables pursuant to Permitted Receivables Securitizations; and
(Af) the transfer by dispositions of real and personal property not otherwise permitted hereunder (other than any Credit Party trade receivables securitization or other dispositions of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(btrade receivables), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any permissibility of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clausewhich shall be considered under subsection 8.2
Appears in 1 contract
Samples: Revolving Credit Agreement (Wisconsin Central Transportation Corp)
Disposition of Assets. The Borrower Company shall not, and shall not suffer or permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Asset Sale property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except:
(ia) Asset Sales in the ordinary course dispositions of business of assets held for resale in the ordinary course of business inventory, or the trade in used, worn-out or replacement of assets surplus equipment, all in the ordinary course of business;
(iib) the concurrent exchange sale of a television broadcast station equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the proceeds of long-term Station operating such sale are reasonably promptly applied to the purchase price of such replacement equipment;
(c) dispositions of assets or cash (including by the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower Company or any Restricted Subsidiary receives cash, Cash Equivalents to the Company or Station operating any Subsidiary pursuant to reasonable business requirements; provided that the Company may not transfer any assets at least equal other than timber and timberlands to any Subsidiary if the fair market value of the assets so exchanged as determined by transferred assets, in the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefromaggregate, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection taken together with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of all other assets (other than timber or timberlands) transferred by the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) Company to any Subsidiary at any time after the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless date of whether a Suspension Period is in effect this Agreement would exceed at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect proposed transfer an amount equal to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (755%) of the consideration received in each such Asset Sale (or series book value of related Asset Sales) is in the form of cash or Cash Equivalents; Company's assets as reflected on its most recent financial statements provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, Agent pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio7.1 hereof, calculated after giving pro forma effect to or, if no such Asset Sale, being greater than 3.25 to 1.00financial statements have yet been required under Section 7.1, the Borrower shall prepay the Loans as provided financial statements referenced in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales)6.11 hereof, or if lessand provided, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard further, that the Company may not transfer any timber and timberlands to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to if the fair market value of such assets as determined timber and timberlands, in good faith at the time aggregate, taken together with the fair market value of such transfer) and (C) all other timber or timberlands transferred by the transfer by any Non-Guarantor Subsidiary of its assets Company to any other Non-Guarantor SubsidiarySubsidiary at any time after the date of this Agreement would exceed the sum of $60,000,000;
(xid) (A) dispositions consisting of the sale exchange of obsolete, worn-out or surplus assets no longer for assets of an equivalent value and of a similar nature to be used or usable in the business of the Borrower Company or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith Subsidiary to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;any Person; and
(xiie) Asset Sales in connection with insurance and condemnation proceedingsdispositions of Permitted Receivables pursuant to Permitted Receivables Purchase Facilities; and
(f) dispositions not otherwise prohibited hereunder; provided that such dispositions are made for fair market value; and provided further, that (i) at the requirements time of Section 2.6(b)(iii) are complied with in connection therewith;
any such disposition, no Event of Default shall exist or shall result from such disposition and (xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xivii) the sale or other disposition aggregate value of all assets so sold by the Borrower or Company and its Subsidiaries, together, shall not exceed in any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clausefiscal year $60,000,000.
Appears in 1 contract
Samples: Credit Agreement (Longview Fibre Co)
Disposition of Assets. The Borrower Parent and the Company shall not, and shall not suffer or permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Asset Sale property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except:
(ia) Asset Sales in the ordinary course dispositions of business of assets held for resale in the ordinary course of business inventory, or the trade in used, worn-out or replacement of assets surplus equipment, all in the ordinary course of business;
(iib) the concurrent exchange sale of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal equipment to the fair market value extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the proceeds of such sale are reasonably promptly applied to the purchase price of such replacement equipment;
(c) dispositions of assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefromParent, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower Company or any Subsidiary in connection with any asset exchange to another Hollywood Entity pursuant to this reasonable business purposes, including dispositions permitted by Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange7.4;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(vd) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vie) leases, subleases, easements as permitted by Section 7.5 or licenses granted by the Borrower or any of its Restricted Subsidiaries 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 Subsidiaries7.12;
(viif) provided no Default or Event of Default exists, (i) Sale and Leaseback Transactions in connection with the real property associated with any Theater and in connection with which a Hollywood Entity will own or lease and operate (and be entitled to the revenues therefrom) the disposition improvements thereon or to be constructed thereon, the aggregate proceeds of which do not exceed $10,000,000 in any Hedge Agreement;fiscal year, (ii) other leases and subleases on market terms of property or space associated with any Theater other than leases or subleases of all or substantially all of the space and property in which any Hollywood Entity has an interest associated with any Theater except as otherwise permitted under clause (i), and (iii) the Dispositions of Theaters described in and made substantially in accordance with the Theater Exchange Letter of Intent; and
(viiig) other Dispositions (other than those described in subsection 7.3(a) through (f) hereof and other than receivables, except to the extent disposed of incidentally in connection with a Disposition otherwise permitted hereby or permitted by subsection (d) of this Section 7.3), the aggregate proceeds of which do not exceed $10,000,000 in any fiscal year, provided that (i) the transfer of assets Company complies with subsection 2.7(a) and (ii) both before and after giving effect to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
such Disposition, (A) the transfer by any Credit Party Hollywood Entities are in compliance with all of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that financial conditions set forth in connection with any such transfer, such Credit Party shall not pay more than an amount equal Section 7.1 on a pro forma basis after giving effect to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries subject Disposition and (B) the forfeiture no Default or surrender Event of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseDefault exists.
Appears in 1 contract
Disposition of Assets. The Borrower shall will not, and shall will not permit or cause any of its Restricted Subsidiaries to, make sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) all or any Asset Sale exceptportion of its assets, business or properties, or enter into any arrangement with any Person providing for the lease by Borrower or any Subsidiary as lessee of any asset that has been sold or transferred by Borrower or such Subsidiary to such Person, or agree to do any of the foregoing, except for:
(i1) Asset Sales sales of Rental Inventory in the ordinary course Ordinary Course of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets in the ordinary course of businessBusiness;
(ii2) the concurrent sale or exchange of a television broadcast station used or obsolete equipment to the extent (y) the proceeds of long-term Station operating assets such sale are applied towards, or cash such equipment is exchanged for, similar replacement equipment, or (including z) such equipment is no longer necessary for the Capital Stock operations of a Person which owns long-term Station operating assets), for which the Borrower or its applicable Subsidiary in the Ordinary Course of Business;
(3) the sale or other disposition by Borrower and its Subsidiaries of any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal Borrower Margin Stock to the extent the fair market value thereof exceeds 25% of the fair market value of the assets so exchanged as determined by the of Borrower in good faith; and its Subsidiaries (including Borrower Margin Stock), provided that fair value is received in exchange therefor;
(v4) the sale, lease or other disposition of assets by a Subsidiary of Borrower to Borrower or to another Wholly Owned Subsidiary if, immediately after giving effect thereto, no Default or Event of Default then exists would exist; and
(5) the sale or would result therefromdisposition of assets outside the Ordinary Course of Business for cash, provided that (w) the aggregate amount of all cash and Net Cash Equivalents received by the Borrower Proceeds from such sales or any Restricted Subsidiary in connection with such asset exchanges shall dispositions do not exceed thirty-five percent (35%) of $5,000,000 in the aggregate consideration for such asset exchangeBorrower and its Subsidiaries during any fiscal year, (x) to the aggregate amount extent not theretofore expended to acquire assets or properties or otherwise reinvested in the business of all cash and Borrower, such Net Cash Equivalents paid by Proceeds are delivered to the Agent within one hundred eighty (180) days after receipt thereof for application to prepayment of the Loans in accordance with the provisions of Section 5.3(D), (y) in no event shall Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) sell or otherwise dispose of any of the aggregate amount paid or transferred by the Borrower or any Equity Interests of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii(other than Immaterial Subsidiaries), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 immediately after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchangethereto, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseexist.
Appears in 1 contract
Samples: Credit Agreement (Movie Gallery Inc)
Disposition of Assets. The Borrower Company shall not, and shall not suffer or permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Asset Sale property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except:
(ia) Asset Sales in the ordinary course dispositions of business of assets held for resale in the ordinary course of business inventory, or the trade in used, worn-out or replacement of assets surplus equipment (including, without limitation, demonstration or pilot plants), all in the ordinary course of business;
(iib) the concurrent exchange sale of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the proceeds of such sale are reasonably promptly applied to the purchase price of such replacement equipment within ninety (90) days of each such sale;
(c) each Specified Asset Sale;
(d) dispositions not otherwise permitted hereunder which are made for fair market value of the assets so exchanged as determined by the Borrower in good faithvalue; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (Bi) at the time of entering into any disposition, no Event of Default shall exist or shall result from such Station Sharing Arrangement disposition, (and after giving effect theretoii) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable with respect to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) transactions involving the disposition of any Hedge Agreement;
assets with an aggregate book or fair market value in excess of $5,000,000, not less than 50% of the aggregate sales price from such disposition shall be paid in cash or Cash Equivalents, and (viiiiii) the transfer of assets to the Borrower aggregate book or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such all assets so sold by the Company and its Subsidiaries, together, shall not exceed (x) 6% of the Tangible Assets of the Company and its Subsidiaries on a consolidated basis during any twelve month period with Tangible Assets to be measured as determined in good faith at of the time beginning of such transfer) period, and (Cy) 15% of the transfer by any Non-Guarantor Subsidiary Tangible Assets of the Company and its assets Subsidiaries on a consolidated basis during the term of this Agreement, with Tangible Assets to any other Non-Guarantor Subsidiarybe measured as of March 31, 2014;
(xie) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form transfer of cash or Cash Equivalents not otherwise prohibited by the Loan Documents;
(f) Investments permitted under Section 8.04 and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, dispositions pursuant to a merger or other consolidation permitted under Section 2.6(b)(iii8.03; and
(g) (it being understood and agreed that nothing in this clausetransfer of inventory, equipment or other assets from the Company to any Subsidiary which is not an Excluded Subsidiary or to the Company or any other such Subsidiary from any Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (CBIZ, Inc.)
Disposition of Assets. The Borrower Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Asset Sale property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except:
(ia) Asset Sales in the ordinary course dispositions of business of assets held for resale in the ordinary course of business inventory, or the trade in used, worn-out or replacement of assets surplus equipment, all in the ordinary course of business;
(iib) the concurrent exchange sale of a television broadcast station equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the proceeds of long-term Station operating assets or cash such sale are reasonably promptly applied to the purchase price of such replacement equipment;
(c) dispositions not otherwise permitted hereunder (including the Capital Stock disposition of all of the capital stock of any operating Subsidiary and including a Person disposition pursuant to a sale and lease-back transaction) which owns long-term Station operating assets), are made for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to fair market value if the fair market value of the all assets so exchanged as determined disposed of by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower Company and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, under this CLAUSE (2c) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed in the greater aggregate $7,500,000 (or, after completion of (x) the Expected Equity Offering, $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale10,000,000); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided PROVIDED that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (Bi) at the time of entering into any disposition, no Event of Default or Unmatured Event of Default shall exist or will result from such Station Sharing Arrangement disposition, (and after giving effect theretoii) no more than ten percent (10%) at least 75% of the Operating consideration received by the Company or such Subsidiary from such disposition is in cash or Cash Flow of the Borrower Equivalent Investments and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(viii) the sale or discount without recourse by the Borrower or any Restricted Subsidiary proceeds thereof of accounts receivable arising are applied as provided in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transferSUBSECTIONS 2.8(a) and (C) the transfer by 2.8(b); and PROVIDED, FURTHER, that any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) proceeds from the sale or other disposition by the Borrower or any Minera Vidaluz, S.A. de C.V. of its Restricted Subsidiaries facility located in Mexico City, Mexico shall not be included in determining the value of assets sold or disposed of pursuant to this CLAUSE (c), and shall not be required to be applied as described in CLAUSE (iii) above, to the extent that prior to or within 270 days after such sale or other disposition is required Minera Vidaluz, S.A. de C.V. uses funds to purchase or build a replacement facility in Mexico;
(d) mergers expressly permitted by Applicable Laws SECTION 8.3 or final order transfers by any Wholly-Owned Subsidiary of the FCCCompany of its assets upon its liquidation to the Company or any of its Wholly-Owned Subsidiaries (subject, in the case of any such transfer to a foreign Subsidiary, to the limitations of SECTION 8.4);
(e) the sale of patents, trademarks and other intellectual property to Rovcal pursuant to documentation reasonably acceptable to the Required Lenders; provided that at least seventy-five percent and
(75%f) in addition to any other disposition permitted by this SECTION 8.2, the sale or disposition of any assets (including the disposition of all of the consideration received in each such Asset Sale capital stock of any operating Subsidiary and including a disposition pursuant to a sale and lease-back transaction) if the fair market value of all assets so disposed of by the Company and its Subsidiaries under this CLAUSE (or series of related Asset Salesf) is does not exceed $1,000,000 in the form aggregate; PROVIDED that (i) at the time of cash any disposition, no Event of Default or Cash Equivalents Unmatured Event of Default shall exist or will result from such disposition and (ii) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) proceeds thereof are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iiiprovided in SUBSECTIONS 2.8(a) (it being understood and agreed that nothing in this clause2.8(b).
Appears in 1 contract
Samples: Credit Agreement (Rayovac Corp)
Disposition of Assets. The Borrower No Credit Party nor any Restricted Subsidiary shall notdissolve, and shall not permit liquidate or sell, transfer, convey, assign or otherwise dispose of any of its Restricted Subsidiaries toproperties or other assets, make including any Asset Sale exceptCapital Stock of any of its Subsidiary (whether in a public or a private offering or otherwise), any of its receivables or any of its other investments, other than:
(i) Asset Sales in the ordinary course sale of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets inventory in the ordinary course of business;
(ii) the concurrent exchange dispositions of a television broadcast station or of long-term Station operating assets or cash among Credit Parties (including the other than Capital Stock of Subsidiaries);
(iii) dispositions of obsolete or worn out equipment or fixtures no longer useful in the business, whether now owned or hereafter acquired, in the ordinary course of business;
(iv) termination of a Person which owns long-term Station operating assets)lease of real or personal property that is not necessary for the ordinary course of business, for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal could not reasonably be expected to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that have a Material Adverse Effect and does not result from a Credit Party’s default;
(v) so long as no Default or Event of Default then exists is continuing or would result therefrom, (w) sales of equipment now owned or hereafter acquired by any Credit Party or a Restricted Subsidiary, the aggregate amount fair market value or book value of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges which shall not exceed thirty$500,000 in the aggregate;
(vi) non-five percent exclusive licenses of Intellectual Property in the ordinary course of business (35%) other than to the extent such licenses would restrict the ability of the aggregate consideration for such asset exchangeCredit Party, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower a Restricted Subsidiary or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to sell or license the subject Intellectual Property or impair the security interests granted to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange);
(Bvii) at the request any sale, transfer or other disposition of all Capital Stock of the Administrative Agent (in its sole discretion)Xxxx and Xxxxxxxx Entities, a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value all or substantially all of the assets so exchangedof the Xxxx and Xxxxxxxx Entities; provided, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 that prior to and after giving effect to any such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchangetransaction, and (3) certifying that no Default or Event of Default exists or would shall have occurred and be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably requestcontinuing;
(iiiviii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be is continuing or would result therefrom, therefrom and (B) sales of other assets of any Credit Party or their Restricted Subsidiaries for fair market value so long as, to the extent the fair market value of such assets exceeds $1,000,000, at least seventy-five percent (75%) % of the total consideration received in each of such Asset Sale (or series of related Asset Sales) sale is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include (in each case, free and clear of all Liens at the time received, other than non-consensual Liens permitted pursuant to Section 7.03); provided, however, that, any Designated Non-Cash Consideration having a received by such Credit Party or Restricted Subsidiary from such sale shall be deemed to constitute cash so long as the aggregate fair market value thereof (measured at the time received thatsuch Designated Non-Cash Consideration is received), when taken together with all other Designated Non-Cash Consideration previously received and then outstandingpursuant to this proviso since the Closing Date, does not exceed the greater of (x) $75,000,000 15,000,000 and 25.0% of Consolidated EBITDA in the aggregate and
(ix) other disposition of assets not to exceed the greater of (x) $2,500,000 and (y) one percent (1.0%) 4.25% of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that EBITDA in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseaggregate.
Appears in 1 contract
Disposition of Assets. The Borrower Holdings shall not, and shall not suffer or permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Asset Sale property (including accounts and notes receivable, with or without recourse), except:
(ia) Asset Sales in the ordinary course dispositions of business of assets held for resale in the ordinary course of business inventory or the trade in or replacement of assets equipment, all in the ordinary course of business;
(iib) the concurrent exchange sale of a television broadcast station equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the proceeds of long-term Station operating assets or cash such sale are reasonably promptly applied to the purchase price of such replacement equipment;
(including c) dispositions of inventory and equipment by the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower Company or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal other Loan Party to the fair market value Company or any other Loan Party pursuant to reasonable business requirements and in the ordinary course of the assets so exchanged as determined by the Borrower in good faith; provided that business;
(v) no Default or Event of Default then exists or would result therefrom, (wd) the aggregate amount lease or sublease of all cash and Cash Equivalents received real property by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower Holdings or any Subsidiary to other Persons in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion ordinary course of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchangebusiness;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(ve) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising cash equivalents and other short term money market investments in the ordinary course of business in connection with the compromise or collection thereofpursuant to Holdings’ usual and customary cash management policies and procedures;
(vif) leases, subleases, easements or licenses granted dispositions of inventory and equipment (other than dispositions permitted under subsection (a)) by the Borrower Holdings or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Loan Party pursuant to any other transaction permitted pursuant Subsidiary that is not a Loan Party or to any Person in which Holdings has a Minority Investment, provided that the aggregate amount of such dispositions, plus the aggregate amount of Investments under Section 7.4(b8.04(e), does not exceed the limitations specified in clauses (i) and (ii) of Section 8.04(e);
(ixg) dispositions of Investments in cash pursuant to sales and Cash Equivalents;leaseback transactions permitted under Section 8.14; and
(Ah) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall dispositions not pay more than an amount equal to the otherwise permitted hereunder which are made for fair market value of such assets (as determined in good faith by Holdings); provided that (i) at the time of any disposition, no Event of Default shall exist or shall result from such transferdisposition, (ii) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business case of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Salesdisposition, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is dispositions, involving aggregate consideration of less than $10,000,000, not less than 80%, and in the form case of cash or Cash Equivalents and any other disposition, not less than 100%, of the Net Proceeds aggregate sales price from such disposition shall be paid in cash, (Asset Salesiii) immediately after giving effect to such disposition, the Disposition Value of such Asset Sale (or series all assets disposed of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clausepermitted by
Appears in 1 contract
Disposition of Assets. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, make any Asset Sale except:
(i) Asset Sales in the ordinary course of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets in the ordinary course of business;
(ii) the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated 15,000,000 at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale)thereof; provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily primary consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseclause (xiv) shall prohibit the transfer of assets to a divestiture trust in accordance with Applicable Laws or a final order of the FCC so long as the requirements of Section 2.6(b)(iii) are complied with when such assets are released from such divestiture trust);
(xv) the sale or other disposition on or prior to the Restatement Effective Date of the Divestiture Stations (as such term is defined in the Project Future Merger Agreement) in accordance with the Project Future Merger Agreement; and
(xvi) the sale or other disposition by the Borrower or a Restricted Subsidiary of real property, equipment or other related assets (but in no event including any FCC License or the Capital Stock of any License Sub) in connection with Tax Advantaged Transactions; provided that the aggregate fair market value of the property and assets sold or disposed of pursuant to this clause (xvi) shall not exceed an aggregate amount equal to the greater of (x) $75,000,000 and (y) two percent (2.0%) of Consolidated Total Assets (calculated at the time of such sale or other disposition).
Appears in 1 contract
Disposition of Assets. The Borrower Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Asset Sale property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except:
(ia) Asset Sales in the ordinary course dispositions of business of assets held for resale in the ordinary course of business Inventory, or the trade in worn-out or replacement of assets surplus equipment, all in the ordinary course of business;
(iib) the concurrent exchange sale of equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the proceeds of such sale are reasonably promptly applied to the purchase price of such replacement equipment, unless such equipment is not needed in the Company's or such Subsidiary's business;
(c) transfers of Accounts Receivable under a television broadcast station or of long-term Station operating assets or cash Permitted Receivables Facility;
(d) dispositions not otherwise permitted hereunder (including the disposition of all of the Capital Stock of a Person any operating Subsidiary by sale of stock or by merger of such Subsidiary with or into another Person, but excluding any Sale/Leaseback Transaction) which owns longare made for fair market value if the fair market value of all assets so disposed of by the Company and its Subsidiaries under this clause (d) since the Restatement Date does not exceed $25,000,000 in the aggregate; provided that (i) at the time of any disposition, no Event of Default or Unmatured Event of Default shall exist or will result from such disposition, (ii) at least 75% of the consideration received by the Company or such Subsidiary from such disposition is in cash or Cash Equivalent Investments and (iii) the proceeds thereof are applied as provided in subsection 2.8(a);
(e) mergers expressly permitted by clauses (i) and (ii) of Section 8.3 or transfers by any Wholly-term Station operating assets), for which Owned Subsidiary of the Borrower Company of its assets upon its liquidation to the Company or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to of its other Wholly-Owned Subsidiaries;
(f) dispositions (including by means of a Sale/Leaseback Transaction) of Assets Held for Sale for consideration not less than the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchangedisposed of;
(Bg) at the request dispositions of the Administrative Agent assets for not less than fair market value in Sale/Leaseback Transactions permitted under Section 8.18 (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying provided that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the aggregate fair market value of the assets so exchanged, all property sold pursuant to this clause (2g) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall may not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchangeexceed $25,000,000); and
(Ch) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event dispositions of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration assets having a an aggregate fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) exceeding $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clausefiscal year.
Appears in 1 contract
Disposition of Assets. The Borrower shall Holdings will not, and shall will not permit any of its Restricted Subsidiaries to, make dispose of all or any Asset Sale except:
part of its interest in any asset except that Holdings and its Subsidiaries may sell or otherwise dispose of assets to any Person other than an Affiliate so long as such sales or other dispositions are (ia) Asset Sales approved by the Required Banks; (b) for at least the fair market value of such assets and the aggregate amount of such asset sales is less than $1,000,000 in any 12-month period and, in any such case, Holdings or such Subsidiary complies with the mandatory prepayment provisions and Commitment reduction provisions herein and, in the ordinary course case of business Collateral, so long as the conditions to the release of assets held for resale Collateral described herein and in the ordinary course applicable Security Documents are met; (c) of business or the trade in or replacement of assets inventory in the ordinary course of business;; (d)
(iii) the concurrent exchange of a television broadcast station equipment that has become worn out, obsolete or of long-term Station operating assets damaged or cash (including the Capital Stock of a Person which owns long-term Station operating assets), otherwise unsuitable or no longer needed for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary use in connection with such asset exchanges shall not exceed thirty-five percent (35%) the business of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower Holdings or any of its Restricted Subsidiaries or should be replaced, as the case may be, in connection with each case as determined in good faith by the board of directors of Holdings or its Subsidiary, as the case may be; (ii) for at least the fair value of such asset exchange shall not exceed thirty-five percent equipment, as determined in good faith by the board of directors of Holdings or its Subsidiaries; and (35%iii) the proceeds of the aggregate amount paid sales of such equipment are used within 120 days of such sales (or transferred such longer period as may be consented to by the Borrower Administrative Agent) to (A) purchase equipment used in substantially similar lines of business or any of its Restricted Subsidiaries in connection with such asset exchange, (yB) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied repay Loans pursuant to Section 2.6(b)(iii), 3.03 and until so applied are held in the Reserve Account; or (ze) at least five (5) Business Days prior of assets as to which the completion likely amount of net sales proceeds that would be realized upon a sale of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) assets is such that a written notification sale of such exchange describing assets is not, in the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory reasonable judgment of the Borrower, (1) certifying economically practicable but such other disposition is otherwise of commercial value to the Borrower; PROVIDED, HOWEVER, that the property in no case shall sales or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale dispositions pursuant to a Spectrum Tender), so long as this clause (Ae) no Default or Event be of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) assets of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to sale which is in excess of an aggregate of $500,000 in any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceededcalendar year, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant Collateral, so long as the conditions to a Spectrum Tender that results the release of Collateral described herein and in the First Lien Leverage Ratioapplicable Security Documents are met; PROVIDED, calculated after giving pro forma effect to such Asset SaleHOWEVER, being greater than 3.25 to 1.00that notwithstanding the foregoing, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% Holdings will not, and will not permit any of such Net Proceeds (Asset Sales)its Subsidiaries to, sell, with or without recourse, or if less, an amount necessary to cause such First Lien Leverage Ratio to be less discount (other than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document connection with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising trade discounts in the ordinary course of business in connection consistent with past practice) or otherwise sell for less than the compromise face value thereof, notes or collection thereof;
(vi) leasesaccounts receivable owed to it by its third-party customers or suppliers. The consideration received by Holdings and its Subsidiaries from each sale of assets permitted by this Section 7.11, subleases, easements or licenses granted by the Borrower or any other than with respect to such sales involving consideration of its Restricted Subsidiaries to third Persons not more than $250,000 in the ordinary course of business that do not interfere aggregate in any material respect with the business calendar year, shall be received in whole within 15 days of such sale and at least 70% of the Borrower consideration from each sale shall consist of Cash or any of its Restricted Subsidiaries;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non. Any non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) Cash proceeds received from the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer constituting Collateral shall be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pledged pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) in accordance with the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents applicable Security Documents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseshall constitute Collateral.
Appears in 1 contract
Disposition of Assets. The Borrower Company Parties shall not, and shall not nor --------------------- permit any of its Restricted their Subsidiaries to, make sell, lease or otherwise dispose of any Asset Sale exceptof its properties, including any disposition of property as part of a sale and leaseback transaction, to or in favor of any Person, except for:
(i) Asset Sales in the ordinary course sales of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets inventory in the ordinary course of business;
(ii) the concurrent exchange transfers of property by a television broadcast station or Company Party to a Company Party;
(iii) transfers of long-term Station operating assets or cash (including the Property by a Foreign Subsidiary to another Foreign Subsidiary whose Capital Stock is subject to a Pledge Agreement;
(iv) dispositions of a Person which owns long-term Station operating assetsinvestments described in paragraphs (v), for which (vi), (vii) and (viii) of the Borrower definition of the term "Restricted Investments";
(v) sales, leases or any Restricted Subsidiary receives cash, Cash Equivalents other dispositions of equipment or Station operating other fixed assets at least equal to the with a fair market value of up to $750,000 in the aggregate in any one calendar year, that are substantially worn, damaged or obsolete and that are replaced with equipment or other fixed assets so exchanged as determined by the Borrower in good faithof like kind, function and value; provided provided, that (vi) no Default or Event of Default is -------- then exists in existence or is reasonably likely to occur or would result therefromfrom such transaction, (wii) subject to the Intercreditor Agreement, until so replaced, the proceeds of each such disposition shall be held by Collateral Agent in accordance with the prepayment provisions set forth in Section 2.7.3(a)(A), (iii) the aggregate amount of all cash and Cash Equivalents received by replacement property shall be acquired within one hundred eighty (180) days after the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) disposition of the aggregate consideration for such asset exchangeproperty to be replaced, and (xiv) the aggregate amount replacement property shall be free and clear of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents Liens other than Permitted Liens that are received by not Purchase Money Liens; and provided further, -------- ------- that, subject to the Borrower or Intercreditor Agreement, any Subsidiary in connection with any asset exchange pursuant such amount that it is not timely used to this Section 7.4(a)(ii) purchase replacement property as provided herein shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (Obligations as provided in each case in form and substance reasonably satisfactory to the Administrative Agent):Section 2.7.3; and
(Avi) sales, leases and other dispositions of property not included in clause (v) above with a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of up to $3,000,000 in the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is aggregate in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender)one calendar year, so long as (Aa) no Default or Event of Default shall have occurred and be continuing is then in existence or is reasonably likely to occur or would result therefromfrom such transaction and (b) subject to the Intercreditor Agreement, the proceeds thereof are applied to the Obligations in accordance with Section 2.7.3 and
(Bvii) at least seventy-five percent (75%) sales, leases and other dispositions of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having property with a fair market value at in excess of $3,000,000 in the time received thataggregate in any one calendar year, when taken together with all other Designated Non-Cash Consideration previously received and so long as (a) no Default or Event of Default is then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of in existence or is reasonably likely to occur or would result from such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Businesstransaction, (Cb) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account Intercreditor Agreement, the proceeds thereof are applied to the Obligations in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceededaccordance with Section 2.7.3, and (Dc) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that each Lender has consented in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect writing to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clausetransaction.
Appears in 1 contract
Samples: Loan and Securities Purchase Agreement (Falcon Products Inc /De/)
Disposition of Assets. The Borrower shall will not, and shall not nor will permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one transaction or a series of transactions), including without limitation any Asset Sale excepttransfer by the Borrower to a Subsidiary (other than a Guarantor) or a Subsidiary to any other Subsidiary (other than a Guarantor), any property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except that, so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, and the Obligations have not been accelerated pursuant to Section 7.2, any of the following transactions are expressly permitted hereunder:
(ia) Asset Sales in the ordinary course dispositions of business of assets held for resale in the ordinary course of business inventory, or the trade in used, worn-out or replacement of assets surplus equipment, all in the ordinary course of business;
(iib) the concurrent exchange sale of a television broadcast station equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the Net Asset Sale Proceeds of long-such sale are applied with reasonable promptness (and in no event more than sixty (60) days after such sale of equipment) to the purchase price of such replacement equipment;
(c) other dispositions of property during the term Station operating of this Agreement whose net book value in the aggregate does not exceed 5% of the Borrower’s total consolidated assets or cash as shown on its balance sheet for its most recent prior fiscal quarter;
(including the Capital Stock of a Person which owns long-term Station operating assets), d) any Asset Sale for which the Borrower Net Asset Sale Proceeds of such Asset Sale are (i) retained as cash or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating (ii) used within 365 days of the receipt of such Net Asset Sale Proceeds (i) to pay for any Permitted Acquisitions, (ii) to purchase tangible assets at least equal to or any information systems or (iii) for working capital or research and development purposes, provided, that, the aggregate fair market value of all property disposed of pursuant to this Section 6.2(d) during the assets so exchanged as determined by term of this Agreement may not exceed $20,000,000;
(e) other Asset Sales in addition to those allowed pursuant to Section 6.2(d) above, provided, that: (a) if VWAP at the time of such Asset Sale is greater than or equal to 150% of the Initial VWAP, the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) be required to prepay the Term Loans from the Net Asset Sale Proceeds of the aggregate consideration for Asset Sale so long as the Net Asset Sale Proceeds of such asset exchange, Asset Sale are (xi) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any retained as cash or Cash Equivalents that are received by or (ii) used within 365 days of the receipt of such Net Asset Sale Proceeds (i) to pay for any Permitted Acquisitions, (ii) to purchase tangible assets or any information systems or (iii) for working capital or research and development purposes, (b) the VWAP at the time of such Asset Sale is less than 150% of the Initial VWAP but greater than or equal to the Initial VWAP, the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant required to Section 2.6(b)(iii), and (z) prepay the Term Loans with at least 50% of the Net Asset Sale Proceeds of the Asset Sale within five (5) Business Days prior to of the completion effectiveness of such exchange, the Borrower shall provide to the Administrative Agent Asset Sale and (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (xc) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect VWAP at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater Asset Sale is less than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00Initial VWAP, the Borrower shall be required to prepay the Term Loans as provided in Section 2.6(b)(iii) in an amount equal to with 100% of such the Net Asset Sale Proceeds (of the Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least Sale within five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow effectiveness of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;such Asset Sale; and
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(viif) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseproperty described on Schedule 6.2 hereto.
Appears in 1 contract
Disposition of Assets. The Borrower shall will not, and shall will not permit or --------------------- cause any of its Restricted Subsidiaries to, make sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) all or any Asset Sale exceptportion of its assets, business or properties (including, without limitation, any Capital Stock of any Subsidiary), or enter into any arrangement with any Person providing for the lease by the Borrower or any Subsidiary as lessee of any asset that has been sold or transferred by the Borrower or such Subsidiary to such Person, or agree to do any of the foregoing, except for:
(i) Asset Sales sales of inventory and licenses or leases of intellectual property and other assets, in the ordinary course of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets each case in the ordinary course of business;
(ii) the concurrent sale or exchange of a television broadcast station used or obsolete equipment to the extent (y) the proceeds of long-term Station operating assets such sale are applied towards, or cash such equipment is exchanged for, replacement equipment or (including z) such equipment is no longer necessary for the Capital Stock operations of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted its applicable Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereofbusiness;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiviii) the sale or other disposition by the Borrower and its Subsidiaries of any Borrower Margin Stock to the extent the fair market value thereof exceeds 25% of the fair market value of the assets of the Borrower and its Subsidiaries (including Borrower Margin Stock), provided -------- that fair value is received in exchange therefor;
(iv) the sale, lease or other disposition of assets by a Subsidiary of the Borrower to the Borrower or to a Subsidiary if, immediately after giving effect thereto, no Default or Event of Default would exist; and
(v) the sale or disposition of assets outside the ordinary course of business for fair value, provided that (w) the greater of (1) the fair -------- market value and (2) the book value, of the assets being disposed of pursuant to this subsection, when aggregated with such values of assets disposed of in connection with all other sales and dispositions not otherwise specifically permitted under this Section that are consummated during the same fiscal quarter or the period of three consecutive fiscal quarters immediately prior thereto, does not exceed either (A) $10,000,000 in the aggregate for the Borrower and its Subsidiaries during any period of four consecutive fiscal quarters, or (B) $25,000,000 in the aggregate for the Borrower and its Subsidiaries over the term of this Agreement, (x) any Net Cash Proceeds are delivered to the Administrative Agent promptly after receipt thereof for application in prepayment of the Loans in accordance with the provisions of Section 2.6(h); (y) in no event shall the Borrower or any of its Restricted Subsidiaries sell or otherwise dispose of assets to the extent that such sale or other disposition is required by Applicable Laws or final order any of the FCCCapital Stock of any Subsidiary; provided that at least seventy-five percent and (75%z) immediately after giving effect thereto, no Default or Event of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseDefault would exist.
Appears in 1 contract
Disposition of Assets. The Borrower shall will not, and shall will not permit or cause any of its Restricted Subsidiaries to, make sell, assign, lease as lessor, convey, transfer or otherwise dispose of (whether in one or a series of transactions) all or any Asset Sale exceptportion of its assets, business or properties (including, without limitation, any Capital Stock of any Subsidiary), or enter into any arrangement with any Person providing for the lease by the Borrower or any Subsidiary as lessee of any asset that has been sold or transferred by the Borrower or such Subsidiary to such Person, or agree to do any of the foregoing, except for:
(i) Asset Sales sales of inventory and licenses or leases of intellectual property and other assets, in the ordinary course of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets each case in the ordinary course of business;
(ii) the concurrent sale or exchange of a television broadcast station used or obsolete equipment to the extent (y) the proceeds of long-term Station operating assets such sale are applied towards, or cash such equipment is exchanged for, replacement equipment or (including z) such equipment is no longer necessary for the Capital Stock operations of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted its applicable Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereofbusiness;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiviii) the sale or other disposition by the Borrower or any of and its Restricted Subsidiaries of assets any Borrower Margin Stock to the extent the fair market value thereof exceeds 25% of the fair market value of the assets of the Borrower and its Subsidiaries (including Borrower Margin Stock), provided that such sale fair value is received in exchange therefor;
(iv) the sale, lease or other disposition is required of assets by Applicable Laws or final order a Subsidiary of the FCCBorrower to the Borrower or to a Subsidiary if, immediately after giving effect thereto, no Default or Event of Default would exist;
(v) sales of investment assets in the ordinary course of business; provided and
(vi) the sale by the Borrower and its Subsidiaries of (x) the capital stock or all or any portion of the assets, business or properties of a Subsidiary that at least seventy-five is not a Material Subsidiary; (y) any asset or group of assets of an Insurance Subsidiary constituting less than (A) in any single transaction or series of related transactions, ten percent (7510%) of Combined Statutory Capital and Surplus as of the last day of the fiscal quarter ending on or immediately prior to the date of such sale, and (B) during the term of this Agreement, in the aggregate with all such other sales pursuant to this clause (vi), thirty percent (30%) of Combined Statutory Capital and Surplus as of the end of the immediately preceding fiscal quarter; and (z) any asset or group of assets of a non-Insurance Subsidiary constituting less than (A) in any single transaction or series of related transactions, ten percent (10%) of the consideration received total assets of the Borrower and its Subsidiaries on a consolidated basis, determined in each accordance with GAAP as of the last day of the fiscal quarter ending on or immediately prior to the date of such Asset Sale sale, and (or series B) during the term of related Asset Sales) is this Agreement, in the form aggregate with all such other sales pursuant to this clause (vi), thirty percent (30%) of cash or Cash Equivalents the total assets of the Borrower and its Subsidiaries on a consolidated basis, determined in accordance with GAAP as of the end of the immediately preceding fiscal quarter; provided in the case of any sale pursuant to this clause (vi) that (A) the Net Cash Proceeds from such sales are delivered to the Agent promptly upon (Asset Salesand in any event not later than ten (10) Business Days after) receipt thereof for application in prepayment of such Asset Sale the Loans in accordance with, and to the extent required under, the provisions of Section 2.6(b) or 2.6(c) and (B) immediately after giving effect thereto, no Default or series Event of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseDefault would exist.
Appears in 1 contract
Disposition of Assets. The Borrower No Loan Party shall, nor shall not, and shall not it permit any of its Restricted Subsidiaries to, directly or indirectly make any Asset Sale Disposition (including as a result of the designation of any Restricted Subsidiary as an Unrestricted Subsidiary in accordance with Section 8.6), except:
(ia) Asset Sales in Dispositions constituting the ordinary course sale of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets inventory and Hydrocarbons in the ordinary course of business;
(iib) Dispositions, for fair value, of worn-out or obsolete equipment not necessary or useful to the concurrent exchange conduct of a television broadcast station the Loan Parties’ business or of long-term Station operating assets equipment that is replaced by equipment or cash (including the Capital Stock personal property of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market comparable value of the assets so exchanged as determined by the Borrower in good faith; provided that and use;
(vc) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or Dispositions from any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower Loan Party or any of its Restricted Subsidiaries to Borrower or any other Loan Party; provided that the requirements of Section 7.12 are then satisfied;
(d) Dispositions of cash and Cash Equivalents in connection with any transaction not prohibited under this Agreement;
(e) the write-off, discount, sale or other Disposition of defaulted or past-due receivables and similar obligations in the ordinary course of business and not undertaken as part of an accounts receivable financing transaction;
(f) Dispositions of equipment or real property (other than Oil and Gas Properties) to the extent that (i) such asset exchange shall property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(g) non-exclusive licenses and sublicenses of intellectual property rights in the ordinary course of business not exceed thirty-five percent (35%) interfering in any material respect with the ordinary conduct of or materially detracting from the value of the aggregate amount paid business of the Loan Parties and their Restricted Subsidiaries;
(h) the abandonment or transferred Disposition of intellectual property rights that are no longer used or useful in the business of the Loan Parties and their Restricted Subsidiaries;
(i) Dispositions constituting Restricted Payments permitted under Section 8.4(a) or Investments permitted under Section 8.5;
(j) Dispositions consisting of any compulsory pooling or unitization ordered by the Borrower a Governmental Authority with jurisdiction over Borrower’s or any of its Restricted Subsidiaries Subsidiaries’ or any of the other Loan Parties’ Oil and Gas Properties;
(k) subject to Section 2.8(g), Dispositions of Proved Oil and Gas Properties (including (x) any Equity Interest of any Loan Party or Restricted Subsidiary that owns Proved Oil and Gas Properties that are included in the most recent Reserve Report and (y) as a result of the designation of any Restricted Subsidiary as an Unrestricted Subsidiary in accordance with Section 8.6) other than in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion consummation of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale transaction pursuant to a Spectrum Tender), so long as Shared Investment Opportunity in accordance with the Management Services Agreement; provided that:
(Ai) no Default or Event of Default shall have occurred and be continuing or would result therefrom, both before and after giving effect thereto;
(Bii) at least seventy-five percent (75%) % of the consideration received in each respect to any such Asset Sale Disposition shall be (or series of related Asset SalesA) is in the form of cash or Cash Equivalents; provided that cash and cash, Cash Equivalents shall include or the release or assumption of environmental or other liabilities related to any Designated Oil and Gas Properties Disposed of in connection therewith (collectively, the “Non-Cash Consideration having a fair market value at the time OGP Consideration”), or (B) other Oil and Gas Properties; provided, that if less than 75% of such consideration received that, when taken together with all other Designated is Non-Cash Consideration previously received and then outstandingOGP Consideration, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to such transaction, any applicable Borrowing Base reduction pursuant to Section 2.8(g) and any mandatory prepayment of Borrowing required by Section 2.7(d)(ii) in connection therewith, Revolving Credit Availability is not less than twenty percent (20%) of the applicable Asset SaleAggregate Commitments then in effect; and
(iii) the consideration received shall be equal to or greater than the fair market value thereof (as reasonably determined by a Responsible Officer of Borrower and if requested by Administrative Agent, Xxxxxxxx shall deliver a certificate of a Responsible Officer of Borrower certifying to that effect);
(l) Farmouts of undeveloped acreage or undrilled depths and assignments in connection with such Farmouts;
(m) the Disposition of Oil and Gas Properties that are not Proved Oil and Gas Properties;
(n) subject to Section 2.8(g), Dispositions of Oil and Gas Properties to “GR Fund IV” or “Subsequent GR Fund” (as such terms are defined in the Management Services Agreement) that are made substantially contemporaneously with the acquisition by the Loan Parties of Oil and Gas Properties (such acquired Oil and Gas Properties, the “Shared Investment Opportunity Oil and Gas Properties”) in connection with a transaction pursuant to a Shared Investment Opportunity consummated in accordance with the Management Services Agreement; provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Businessthat, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without after giving effect to any such Asset Sales andDisposition, if requested by the Administrative Agent, certified by an Authorized Signatory Loan Parties shall retain at least 75% of the Borrower)direct or indirect interests in such Shared Investment Opportunity Oil and Gas Properties; and
(o) other Dispositions (other than Dispositions of Proved Oil and Gas Properties) in aggregate amount for any fiscal year not to exceed at the time made, shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that together with any Asset Sale other Dispositions made pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iiio) in an amount equal to 100% of such Net Proceeds (Asset Sales)fiscal year, or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value greater of such assets as determined in good faith at the time of such transfer(i) $7,500,000 and (Cii) the transfer by any Nontwo and one-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five half percent (752.5%) of the consideration received Borrowing Base then in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseeffect.
Appears in 1 contract
Disposition of Assets. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, make Make any Asset Sale Disposition, except:
(a) sales of inventory in the Ordinary Course of Business;
(b) sales, trade-ins or dispositions of used, obsolete, worn out or surplus equipment or property for value in the Ordinary Course of Business,
(c) so long as no Event of Default shall exist, (i) Asset Sales sales and transfers of any property or assets (other than Intellectual Property) in connection with a Sale and Leaseback Transaction that complies with the requirements of Section 10.2.18 and (ii) non-exclusive licenses of Intellectual Property in the ordinary course Ordinary Course of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets in the ordinary course of businessBusiness;
(d) termination of a lease of real or personal Property that could not reasonably be expected to have a Material Adverse Effect;
(e) a transfer of Property by a Subsidiary or Obligor to an Obligor (provided, (x) if transferred from a Borrower, such Obligor shall also be a Borrower and (y) if transferred from a US Obligor, such Obligor shall also be a US Obligor); and
(f) other Asset Dispositions in any Fiscal Year that, together with all other property of the Obligors and their Subsidiaries previously Disposed of as permitted by this clause (f) during any Fiscal Year, does not exceed $5,000,000;
(g) a Distribution permitted under Section 10.2.4;
(h) Dispositions for fair market value of equipment or real property to the extent that (i) such equipment or real property is exchanged for credit against the purchase price of similar replacement property or (ii) the concurrent exchange proceeds of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal such Disposition are reasonably promptly applied to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion purchase price of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchangereplacement equipment or real property;
(Bi) at the request Dispositions that consist of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of overdue accounts receivable arising in the ordinary course Ordinary Course of business Business, but only in connection with the compromise or collection thereof;; and
(vij) leases, subleases, easements any assignment or licenses granted by the Borrower or any sale of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party Accounts pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (an Approved Supplier Finance Arrangement. provided that in connection all Asset Dispositions permitted hereby (other than with any such transfer, such Credit Party respect to clause (j) above) shall not pay more than an amount equal to the be for fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) % of the consideration received paid therefor shall be in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clausecash.
Appears in 1 contract
Disposition of Assets. The Borrower shall will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, make Dispose of any Asset Sale property except:
(ia) Asset Sales in the ordinary course sale of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets Hydrocarbons in the ordinary course of business;
(iib) the concurrent exchange Disposition of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash equipment and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the other property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise business, that is obsolete or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable necessary in the business of the Borrower or any of its Restricted Subsidiaries or that is being replaced by equipment of comparable value and utility;
(Bc) the forfeiture or surrender Dispositions of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business cash and Cash Equivalents in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCCbusiness;
(xiid) Asset Sales any Credit Party may Dispose of its property to another Credit Party;
(e) sales or discounts of overdue accounts receivable in the ordinary course of business, in connection with insurance the compromise or collection thereof, and condemnation proceedingsnot in connection with any financing or receivables transaction;
(f) substantially contemporaneous (and in any event occurring within thirty (30) days of each other) Dispositions of Oil and Gas Properties as to which no Proved Reserves are attributable in exchange for other Oil and Gas Properties and, subject to the proviso of this clause (f), a combination of Oil and Gas Properties and cash; provided that (i) the Fair Market Value of the Oil and Gas Properties exchanged by the Borrower or its Subsidiary (together with any cash) is reasonably equivalent to the Fair Market Value of the Oil and Gas Properties (together with any cash) to be received by the Borrower or its Subsidiary, and (ii) any cash received must be applied in accordance with Section 2.07;
(g) Dispositions of seismic, geologic or other data and license rights in the ordinary course of business so long as such Disposition is not adverse to the Lenders and does not impair the Borrower’s or any Subsidiary’s operation of the Oil and Gas Properties;
(h) Hedge Modifications; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewithconsideration received for such Hedge Modification is at least equal to Fair Market Value;
(xiiii) solely to the extent constituting Asset Salesa Disposition, mergersthe incurrence of Liens, consolidations the making of Investments and liquidations the making of Restricted Payments, in each case as expressly permitted by Section 6.03, Section 6.07 and Section 6.09 respectively;
(j) Dispositions of claims against customers, working interest owners, other industry partners or any other Person in connection with workouts or bankruptcy, insolvency or other similar proceedings with respect thereto; provided that the consideration received for such claim is at least equal to Fair Market Value; and
(k) other dispositions and sales of Properties (including any midstream assets or gathering systems) not otherwise permitted pursuant to this Section 7.4(b), Restricted Payments permitted 6.05 having a fair market value not to exceed $15,000,000 in the aggregate for all dispositions and sales of Properties pursuant to this Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;6.05(i) for the term of this Agreement; provided that:
(xivi) the sale consideration received shall be at least equal to the Fair Market Value of any Oil and Gas Property or other disposition Properties subject to such Disposition (and the Borrower shall deliver to the Administrative Agent a certificate of a Responsible Officer certifying that such Disposition was for Fair Market Value); and
(ii) at least 75% of the consideration received by the Borrower or any Subsidiary in respect of its Restricted Subsidiaries of assets to the extent that such sale Disposition is cash or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the Cash Equivalents and any consideration not received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents Equivalent shall solely be in the form of Oil and Gas Properties (excluding, for the Net Proceeds avoidance of doubt, any Capital Stock); and
(Asset Salesiii) such Disposition shall not be a farm-out, drillco, or similar arrangement without the prior consent of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseMajority Lenders.
Appears in 1 contract
Disposition of Assets. The Borrower shall notCompany covenants that it will not lease, and shall not sell, transfer or otherwise dispose of, or permit any of its Restricted Subsidiaries toto lease, make sell, transfer or otherwise dispose of, voluntarily or involuntarily, any Asset Sale except:
assets except for consideration in an amount not less than the fair market value of such asset, and, in the case of any material assets so disposed of, as determined in good faith by such Person’s Board of Directors and only if such Person promptly notifies Prudential and each Significant Holder of such lease, sale, transfer, or other disposition of material assets, excluding, however, (i) Asset Sales in the ordinary course sales of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets inventory in the ordinary course of business;
, (ii) sales, transfers and other dispositions of equipment determined to be obsolete or no longer useful, (iii) sales, transfers or other dispositions of margin stock, (iv) sales, transfers and other dispositions of accounts receivable originated by the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower Company or any Restricted Subsidiary receives cashthereof that are subject to a securitization program permitted under paragraph 6D, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event non-recourse sales, transfers and other dispositions of Default then exists or would result therefrom, (w) accounts receivable at discounts reflective of prevailing local market rates provided the aggregate amount of all cash such sales, transfers and Cash Equivalents received by other dispositions of accounts receivables in any month does not to exceed 25% of the Borrower prior month end consolidated accounts receivable of the Company and its Subsidiaries, (vi) sales, transfers or any Restricted Subsidiary in connection with other dispositions of other assets of such asset exchanges Person and its Subsidiaries to the extent that the aggregate fair market value of all such other assets so leased, sold (including, without limitation, sale and leaseback transactions), transferred and disposed after the date hereof shall not exceed thirty-five percent $50,000,000 (35%or its equivalent in another currency), and (vii) sales, leases, transfers or other dispositions of property or assets of any Subsidiary or capital stock of any Subsidiary to the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower Company or any of its Restricted Subsidiaries in connection with Subsidiaries; provided that if such asset exchange shall sale, lease, transfer or other disposition of property is made to a Subsidiary which is not exceed thirtya Wholly-five percent Owned Subsidiary, then (35%a) of the aggregate amount paid such sale, lease, transfer or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall other disposition must be applied pursuant to Section 2.6(b)(iii)made on an arm’s length basis, and (zb) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) sale, lease, transfer or (y) that the pro forma Leverage Ratio other disposition, and after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchangethereto, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseexistence.
Appears in 1 contract
Samples: Private Shelf Agreement (Corn Products International Inc)
Disposition of Assets. The Borrower shall Company will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, make sell, lease as lessor, transfer or otherwise dispose of any Asset Sale Property (collectively, "TRANSFERS"), except:
(i) Asset Sales Transfers of inventory and of obsolete or worn out assets, in each case in the ordinary course of business of assets held for resale in the ordinary course of business Company or the trade in or replacement of assets in the ordinary course of businesssuch Restricted Subsidiary;
(ii) the concurrent exchange Transfers of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower all or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value portion of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event Property of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):Able
(Aa) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request15 International;
(iii) other Asset Sales (including any Asset Sale pursuant Transfers from the Company to a Spectrum Tender), so long as Wholly-Owned Restricted Subsidiary;
(iv) Transfers from a Restricted Subsidiary to the Company or a Wholly-Owned Restricted Subsidiary;
(v) Transfers arising solely out of Sale-Leaseback Transactions; and
(vi) any other Transfer at any time of any Property to a Person for an Acceptable Consideration if the conditions specified in each of the following clauses (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom), (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (yC) one percent would be satisfied with respect to such Transfer:
(1.0%A) the SUM of:
(I) the book value of Consolidated Total Assets (calculated such Property at the time of receipt Transfer; PLUS
(II) the aggregate book value of all other Property Transferred (other than in Transfers referred to in the foregoing clauses (i), (ii), (iii), (iv) and (v) of this Section 4.2 (collectively, "EXCLUDED TRANSFERS")) after the December 31 immediately preceding the date of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale)Transfer; provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall would not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) Consolidated Total Assets measured as of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii)immediately preceding December 31;
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) the SUM of:
(I) the current book value of such Property at the time of entering into Transfer; PLUS
(II) the aggregate book value of each other asset Transferred (other than in Excluded Transfers) after the Closing Date; would not exceed forty percent (40%) of Consolidated Total Assets measured as of such Station Sharing Arrangement immediately preceding December 31; and
(C) immediately before and after the consummation of the Transfer, and after giving effect thereto) , no more than ten percent (10%) Default or Event of Default would exist; PROVIDED, HOWEVER, that any Transfer of Property shall be excluded for purposes of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
foregoing clauses (A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) to the forfeiture or surrender extent that, within one hundred eighty (180) days after such Transfer, the proceeds of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;such Transfer, net of
(xiia) Asset Sales 16 reasonable and ordinary transaction costs and expenses incurred and actually paid in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) such Transfer, are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition applied by the Borrower Company or any of its such Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseSubsidiary to:
Appears in 1 contract
Samples: Securities Purchase Agreement (Able Telcom Holding Corp)
Disposition of Assets. The Borrower shall notwill not directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one transaction or a series of 11/27/00 Five Year Credit Agreement 31 32 transactions) any property (including accounts and shall not permit notes receivable, with or without recourse) or enter into any agreement to do any of its Restricted Subsidiaries tothe foregoing, make any Asset Sale except:
(ia) the Alleghany Asset Sales in the ordinary course Management Sale;
(b) dispositions of business of assets held for resale in the ordinary course of business inventory, or the trade in used, worn-out or replacement of assets surplus equipment, all in the ordinary course of business;
(iic) the concurrent exchange sale of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal equipment to the fair market extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the proceeds of such sale are applied with reasonable promptness to the purchase price of such replacement equipment; and
(d) other dispositions of property during the term of this Agreement whose net book value in the aggregate does not exceed 50% of the Borrower's total consolidated assets so exchanged as determined by shown on its balance sheet for its most recent prior fiscal quarter; provided, that, absent the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) written consent of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchangeMajority Banks, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification not sell, lease, transfer or otherwise dispose of such exchange describing the assets to be exchanged and the proposed closing date any of the exchange;
(B) at capital stock of Mineral Holdings or AUL London, except that the request written consent of the Administrative Agent (in its sole discretion)Majority Banks to such sale, a certificatelease, executed by an Authorized Signatory transfer or other disposition of any of the Borrower, (1) certifying that the property capital stock of Mineral Holdings or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either AUL London shall not be required (x) the Borrower’s pro forma compliance for any issuances of capital stock by Mineral Holdings or AUL London in connection with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) employee compensation and incentive arrangements or (y) to the extent that the pro forma Leverage Ratio after giving effect proceeds therefrom are used to reduce ratably the Revolving Commitment under this Agreement and the "Revolving Commitment" under the 364 Day Credit Agreement (whereupon the outstanding unpaid principal balance of each Note (whether under this Agreement or under the 364 Day Credit Agreement) given in favor of a Bank shall be prepaid in an amount equal to the excess of the outstanding unpaid principal balance of such exchange shall not be greater than Note over the Leverage Ratio immediately prior to giving effect to Revolving Commitment of such exchange, Bank as so reduced in accordance with Sections 2.7 and (3) certifying that no Default or Event 2.17 of Default exists or would be caused by such exchange; and
(C) such other additional financial information as this Agreement and the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender364 Day Credit Agreement), so long as (A) no Default or Event of Default nor shall have occurred and be continuing or would result therefromthe Borrower, (B) at least seventy-five percent (75%) absent the written consent of the consideration received in each such Asset Sale (Majority Banks, permit Mineral Holdings or series AUL London, directly or indirectly to sell, lease, transfer or otherwise dispose of related Asset Sales) is in the form of cash any properties or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received thatassets, when taken together with all other Designated Non-Cash Consideration previously received and then outstandingtangible or intangible, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly now owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Businesshereafter acquired, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory representing more than 50% of the Borrower), shall not exceed fifteen percent (15%) total consolidated operating assets of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (Mineral Holdings or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvestedAUL London, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans be as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined shown on their respective balance sheets for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clausemost recent prior fiscal quarter.
Appears in 1 contract
Disposition of Assets. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, make Make any Asset Sale Disposition, except:
(ia) Asset Sales Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of assets held for resale property no longer used or useful, or economically practicable to maintain, in the ordinary course conduct of the business of the Obligors (including allowing any registration or the trade in application for registration of any Intellectual Property that is no longer used or replacement useful, or economically practicable to maintain, to lapse, go abandoned, or be invalidated);
(b) Dispositions of Inventory and other assets in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property (ii) an amount equal to the concurrent exchange Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property or (iii) such Disposition is allowable under Section 1031 of the Code, or any comparable or successor provision is for like property and for use in a television broadcast station Similar Business;
(d) Dispositions permitted by Section 10.2.8, Investments permitted by Section 10.2.5, Distributions permitted by Section 10.2.7 and Liens permitted by Section 10.2.2, in each case, other than by reference to this Section 10.2.6(d);
(e) Dispositions of Cash Equivalent;
(f) Dispositions of (A) Accounts which are not Eligible Accounts in connection with the collection or of long-term Station operating compromise thereof (including sales to factors or other third parties) and (B) Accounts and related assets pursuant to a Permitted Receivables Financing;
(g) leases, subleases, licenses or cash sublicenses (including the Capital Stock provision of a Person which owns long-term Station operating assetssoftware under an open source license), for which in each case that do not materially interfere with the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value business of the assets so exchanged Obligors, taken as determined by the Borrower in good faith; provided that a whole;
(vh) no Default or Event transfers of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) property subject to Casualty Events upon receipt of the aggregate consideration for Net Proceeds of such asset exchange, Casualty Event;
(i) Dispositions of property to Persons other than Obligors (including the (x) the aggregate amount sale or issuance of all cash Equity Interests and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or Sale Leaseback) not otherwise permitted under this Section 10.2.6; provided, (i) such Disposition is made for Fair Market Value, (ii) with respect to any Subsidiary in connection with any asset exchange Disposition pursuant to this Section 7.4(a)(iiclause (h) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to for a purchase price in excess the completion greater of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or $5,000,000 and (y) that 5% of Consolidated EBITDA for the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including most recently ended Test Period for any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (transaction or series of related Asset Salestransaction, and (iii) is an Obligor shall receive not less than 75% of such consideration in the form of cash or Cash EquivalentsEquivalent; provided, however, that for the purposes of this clause (iii), (A) the greater of the principal amount and the carrying value of any liabilities (as shown on the most recent balance sheet of the Borrowers provided hereunder or in the footnotes thereto) or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities that would have been reflected on the balance sheet of the Borrowers or in the footnotes thereto if such incurrence, accrual or increase had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Obligors, other than liabilities that are by their terms subordinated in right of payment to the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Obligors have been validly released by all applicable creditors in writing, shall be deemed to be cash, (B) any securities received by any Obligor from such transferee that are converted by such Obligor into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash and Cash Equivalents shall include (C) any Designated Non-Cash Consideration received by any Obligor in respect of such Disposition having a fair market value at the time received thatan aggregate Fair Market Value, when taken together with all other Designated Non-Cash Consideration previously received and then pursuant to this clause (i) that is at that time outstanding, does not exceed in excess of $1,000,000, with the greater Fair Market Value of (x) $75,000,000 and (y) one percent (1.0%) each item of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration being measured at the time received and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower)subsequent changes in value, shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio deemed to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii)cash;
(ivj) Asset Sales Dispositions of Investments in joint ventures, including to the form extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions of Station Sharing Arrangements; provided that any assets (including Equity Interests) (A) at least five (5) Business Days prior acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the entry into any Station Sharing Arrangement (core or such later time as may be approved by principal business of the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement Obligors and (B) at made to obtain the time approval of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, any applicable antitrust authority in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangementsconnection with a Permitted Acquisition;
(vl) transfers of condemned property as a result of the sale exercise of “eminent domain” or discount without recourse other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the Borrower or any Restricted Subsidiary thereof respective insurer of accounts receivable arising in the ordinary course such real property as part of business in connection with the compromise or collection thereofan insurance settlement;
(vim) leases, subleases, easements or licenses granted Dispositions by the Borrower or any a captive insurance subsidiary of its Restricted Subsidiaries 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 SubsidiariesInvestments;
(viin) the disposition unwinding of any Hedge Agreement;Swap Obligations or Cash Management Obligations; and
(viiio) the transfer Dispositions of assets property for Fair Market Value not otherwise permitted under this Section 10.2.6 having an aggregate purchase price not to the Borrower exceed $15,000,000. If any Asset Disposition of Eligible Accounts or any Eligible Inventory (other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable Inventory in the business Ordinary Course of Business) which is not restricted under Section 10.2.6 is consummated by an Obligor, within 5 Business Days of such consummation, the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith Agent will deliver an updated Borrowing Base Report to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each Agent reflecting such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseDisposition.
Appears in 1 contract
Samples: Loan, Guaranty and Security Agreement (SMART Global Holdings, Inc.)
Disposition of Assets. The From and after the Closing Date, the Parent Borrower shall not, and shall not suffer or permit any of its Restricted Subsidiaries to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise Dispose of (whether in one or a series of related transactions) any Asset Sale Property, except:
: (a) (i) Asset Sales in the ordinary course Dispositions of business of assets held for resale in the ordinary course of business inventory, or the trade in worn-out, obsolete or replacement of assets in the ordinary course of business;
(ii) the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating surplus equipment and other tangible fixed assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form the Ordinary Course of Business, and substance reasonably satisfactory to (ii) Dispositions of other property that is immaterial and no longer used or useful in the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date conduct of the exchange;
(B) at the request business of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Parent Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged(including, (2) attaching financial calculations specifically demonstrating either without limitation, (x) Dispositions of any Property acquired in connection with a Permitted Acquisition that the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless Parent Borrower determines is or will not be useful or necessary in the conduct of whether a Suspension Period is in effect at the time business of such exchange) or the Parent Borrower and its Restricted Subsidiaries, (y) that Dispositions of Intellectual Property (including allowing registered Intellectual Property to lapse or be abandoned), the pro forma Leverage Ratio after giving effect Disposition of which would not reasonably be expected to such exchange shall not be greater than have, either individually or in the Leverage Ratio immediately prior to giving effect to such exchangeaggregate, a Material Adverse Effect and (3z) certifying allowing any registrations or any applications for registration of any immaterial Intellectual Property to lapse, expire or be abandoned); (b) Dispositions of assets for Fair Market Value; provided that no Default or Event of Default exists or would be caused by such exchange; and
(Ci) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including with respect to any Asset Sale Disposition pursuant to this subsection 5.2(b) for a Spectrum Tenderpurchase price in excess of the greater of (x) $40,000,000 and (y) 10.0% of Consolidated EBITDA (determined for the Test Period then most recently ended before the effective date of any binding agreement regarding such Disposition that sets forth the amount of such Designated Non-Cash Consideration or, if no such binding agreement exists, for the Test Period most recently ended before the receipt of such Designated Non-Cash Consideration), so long as not less than 75% of the aggregate consideration from such Disposition shall be paid in cash or Cash Equivalents (provided, however, that, for the purposes of this clause (i), (A) no Default any liabilities (as shown on the most recent balance sheet of the Parent Borrower provided hereunder or Event in the footnotes thereto) of Default the Parent Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Obligations, that are assumed by the transferee with respect to the applicable Disposition shall have occurred and be continuing or would result therefromdeemed to be cash, (B) at least seventy-five percent any securities received by the Parent Borrower or such Restricted Subsidiary from such transferee that are converted by the Parent Borrower or such Restricted Subsidiary into cash or Cash Equivalents (75%) to the extent of the consideration received in each such Asset Sale (cash or series Cash Equivalents received) within 270 days following the closing of related Asset Sales) is in the form of applicable Disposition shall be deemed to be cash or Cash Equivalents; provided that cash and Cash Equivalents shall include , (C) any Designated Non-Cash Consideration received by the Parent Borrower or such Restricted Subsidiary in respect of the applicable Disposition having a fair market value at the time received thatan aggregate Fair Market Value, when taken together with all other Designated Non-Cash Consideration previously received and then outstandingpursuant to this clause (C) that is outstanding at the time such Designated Non-Cash Consideration is received, does not exceed in excess of the greater of (x) $75,000,000 60,000,000 and (y) one percent (1.0%) 15.0% of Consolidated Total Assets EBITDA (calculated at determined for the time Test Period then most recently ended before the effective date of any binding agreement regarding such Disposition that sets forth the amount of such Designated Non-Cash Consideration or, if no such binding agreement exists, for the Test Period most recent ended before the receipt of such Designated Non-Cash Consideration), with the Fair Market Value of each item of Designated Non-Cash Consideration and determined after giving effect to being measured on the applicable Asset Sale); provided further effective date of any binding agreement regarding such Disposition that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to sets forth the non-Affiliate owner(s) amount of such Restricted Subsidiary Designated Non-Cash Consideration or, if no such binding agreement exists, at the time received and, in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faithany case, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower)subsequent changes in value, shall not exceed fifteen percent (15%be deemed to be cash or Cash Equivalents) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds 75% limitation referred to above shall be deemed satisfied with respect to any Disposition of assets in which the cash or Cash
(Asset Salesi) collection of such Asset Sale Accounts in the Ordinary Course of Business, (or series ii) Dispositions of related Asset SalesCash Equivalents in the Ordinary Course of Business, (iii) are applied or, subject to conversions of Cash Equivalents and the proviso to this clause (DInvestments listed in Section 5.4(g)(i), reinvested, as the case may be, pursuant to Section 2.6(b)(iii)into cash or other Cash Equivalents; provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
and (iv) Asset Sales conversions of the long-term Investments referred to in Section 5.4(g) (and any gains thereon realized or accruing after the Closing Date) into other long-term Investments listed in Section 5.4(g)(i) or into cash or other Cash Equivalents; (d) the cross-licensing, sublicensing or licensing of Intellectual Property in the form Ordinary Course of Station Sharing ArrangementsBusiness and the non-exclusive licensing of Intellectual Property in the Ordinary Course of Business; provided that (Ae) at least five the substantially contemporaneous exchange of Property for Property of a like or similar kind (5) Business Days prior other than as set forth in subsection 5.2(d)), to the entry into extent that the Property (together with any Station Sharing Arrangement (cash or Cash Equivalents) received in such later time as may be approved by exchange is of a value substantially equivalent to or greater than the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) value of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets Property exchanged as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to Parent Borrower; (1f) no longer be necessary in the conduct of its business in the ordinary course Dispositions restricted, and permitted, by Section 5.3; (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(bg), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause
Appears in 1 contract
Disposition of Assets. The Borrower shall ATel will not, and shall will not permit any of its Restricted Subsidiaries to, make sell, lease, assign, transfer or otherwise dispose of all or any Asset Sale except:
part of its interest in any asset other than (i) Asset Sales in the ordinary course of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets Inventory in the ordinary course of business;
, (ii) excess, obsolete or worn-out property disposed of in the concurrent exchange ordinary course of a television broadcast station or business, (iii) commercially reasonable dispositions of long-term Station operating assets or cash assets; provided however, that (including the Capital Stock of a Person which owns long-term Station operating assets)x)(a) such dispositions are for fair market value, for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets (b) at least equal to the fair market value 80% of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) dispositions is in the form of cash Cash or Cash Equivalents; provided that cash Equivalent and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at is used to pay down the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceededLoans, and (Dc) the Net Proceeds (Asset Sales) of consideration for such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided disposition that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales is not in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior Cash or Cash Equivalent is pledged to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Collateral Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to (y)(a) such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined dispositions are Systems for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value and are not in excess of such assets as determined 50,000 number of line of site homes in good faith at any single transaction and 300,000 number of line of site homes in the time of such transfer) and aggregate, (Cb) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided consideration for such dispositions that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash Cash or Cash Equivalents is used to pay down the loans, and (c) the consideration for such dispositions that is not in the form of Cash or Cash Equivalents is pledged to the Collateral Agent, or (z)
(a) the consideration received is assets of equal or greater value than the greater of the fair market value or 47 - 42 - the liquidation value of the assets disposed, (b) the Collateral Agent consents to such asset disposition, which consent will not be unreasonably withheld, and (c) the value of the Collateral as a whole has not adversely been affected, (iv) the disposition of assets listed on Annex 6.10; provided however, that with respect to the dispositions listed under column A thereof, the consideration for such disposition is used to pay down the Loans and pays the Obligations in full, and (v) other dispositions of assets that do not constitute Collateral; provided, however, that (a) such other dispositions are for fair market value, (b) at least 75% of the consideration for such other dispositions is in the form of Cash or Cash Equivalents and (c) such consideration is either (1) reinvested in the Net Proceeds business of ATel or its Subsidiaries or (Asset Sales2) used to pay down the Loans. To the extent any asset sale permitted by this Section 6.10 shall include Collateral, such asset shall be released upon satisfaction of such Asset Sale (or series the applicable conditions of related Asset Sales) are applied or reinvested, as this Section 6.10 and the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseapplicable General Security Agreement.
Appears in 1 contract
Disposition of Assets. The Borrower shall notSell or otherwise dispose of any assets (including the sale or issuance of any capital stock of any Subsidiary), and shall not permit any of its Restricted Subsidiaries towhether now owned or hereafter acquired, make any Asset Sale except:
except for (i) Asset Sales the sale or other disposition of obsolete or worn out property in the ordinary course of business; (ii) the sale of inventory in the ordinary course of business; (iii) sales or other dispositions permitted by clauses (i) and (ii) of Section 6.02; (iv) sale or disposition of assets constituting all or a portion of the Automotive Holdings Group (but not including any related foreign assets except for de minimis foreign assets ); (v) the sale, issuance or contribution of any Subsidiary’s capital stock to the Borrower or to any Wholly-Owned Guarantor or, in the case of a sale, issuance or contribution of capital stock of a Foreign Subsidiary that is not a first-tier Foreign Subsidiary, to any Wholly-Owned Subsidiary of the Borrower; (vi) sales or other dispositions consisting of the transfer of rights in Intellectual Property to third parties and/or routine patent portfolio deletions, in each case in the ordinary course of business consistent with past practice; (vii) sales or other dispositions of accounts receivables and other related assets held for resale in connection with any Foreign Receivables Financing, so long as such Foreign Receivables Financing is otherwise permitted under this Agreement (including pursuant to Section 6.01 and Section 6.03); (viii) intercompany sales or contributions among the Borrower and the Guarantors; (ix) dispositions described on Schedule 6.10; and (x) any other sale or disposition of property not otherwise expressly permitted by this Section 6.10 (A) having a fair market value of less than $500,000 or (B) having a fair market value of $500,000 or more, in which case such dispositions shall not exceed $100,000,000 in the ordinary course aggregate for any fiscal year of business the Borrower; provided that compliance with the restrictions set forth in this Section 6.10 shall not be required if, after giving effect to any transaction or activity otherwise subject to this Section 6.10, the trade Facility Availability Amount would be equal to or greater than $500,000,000, except that in or replacement of assets in the ordinary course of business;
(ii) the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which no event may the Borrower or any Restricted Subsidiary receives cashGuarantor sell or otherwise transfer any assets, Cash Equivalents whether now owned or Station operating assets at least equal hereafter acquired, to a Non-Filed Domestic Entity if, after giving effect thereto, the aggregate fair market value of the all assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid sold or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal Guarantors to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not Filed Domestic Entities would exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) 15,000,000 during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation term of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Guaranty Agreement (Delphi Corp)
Disposition of Assets. The Borrower shall Company will not, and shall will not permit any of its Restricted Subsidiaries to, make Subsidiary to Transfer any Asset Sale Property except:
(i) Asset Sales Transfers of inventory and of current assets in the ordinary course of business of assets held the Company or such Subsidiary;
(ii) Transfers of other Property no longer necessary for resale the operation of, and that individually and in the aggregate are not material to, the business of the Company and the Subsidiaries, in the ordinary course of business or the trade in or replacement of assets in the ordinary course of business;
(ii) the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default Company or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably requestSubsidiary;
(iii) other Asset Sales (including any Asset Sale pursuant Transfers from the Company to a Spectrum Tender), so long as (A) no Default Wholly-Owned Subsidiary or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii)Obligor;
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior Transfers from a Subsidiary to the entry into any Station Sharing Arrangement (Company or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and Wholly-Owned Subsidiary or any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations Subsidiary that are subject to Station Sharing Arrangementsis an Obligor;
(v) Transfers of Property necessary to give effect to merger or consolidation transactions permitted by Section 4.6;
(vi) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable or notes receivable arising in the ordinary course of business business, or the conversion or exchange of accounts receivable into or for notes receivable in connection with the compromise or collection thereof;
(vivii) leases, subleases, easements or licenses granted by the Borrower or any license of its Restricted Subsidiaries to third Persons intellectual property 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;
(vii) the disposition of any Hedge Agreementbusiness;
(viii) leases or subleases not materially interfering with the transfer ordinany course of assets to conduct of the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b)business of the Company and its Subsidiaries;
(ix) dispositions Transfers of Investments in cash and Cash Equivalents;Property during any fiscal year, so long as the aggregate Fair Market Value or book value, whichever is greater, of all such Property is less than $500,000.
(Ax) the transfer by any Credit Party of its assets to any other Credit Party, Transfer of Property; PROVIDED (Bl) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay Transfer for more than an amount equal to the fair market value $200,000 shall be for consideration at least 50% of such assets as determined in good faith at the time which consists of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course Acceptable Consideration and (2) be required to remain in future compliance with Applicable Laws and final orders the proceeds of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) such transfer which are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash Acceptable Consideration, net of reasonable and ordinary transaction costs (including, without limitation, attorneys' fees, accountants' fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or Cash Equivalents and mortgage recording taxes, amounts required to be applied to the Net Proceeds (Asset Sales) repayment of Debt secured by a Lien on any asset which is the subject of such Asset Sale Transfer), taxes paid or reasonably estimated by the Company to be payable as a result thereof (including withholding taxes) and appropriate amounts to be provided by the Company or series of related Asset Sales) are applied or reinvestedany Subsidiary, as the case may be, pursuant as a reserve required in accordance with GAAP against any liabilities associated with such Transfer and retained by the Company or any Subsidiary as the case may be, after such Transfer, are, within three hundred and sixty (360) days after such transfer, applied by the Company or any such Subsidiary either:
(A) to purchase productive tangible Property, similar in nature to that of the Property so Transferred, for use in the conduct of the business of the Company and the Subsidiaries;
(B) to the repayment or prepayment of a principal amount of Senior Debt (including, without limitation, payments in respect of a Revolving Credit Facility, resulting in a permanent reduction of the availability or commitments thereunder), but not including payments in respect of a Revolving Credit Facility which do not result in a permanent reduction of the availability or commitments thereunder; or
(C) to a prepayment of the principal amount of the Notes in accordance with Section 2.6(b)(iii) (it being understood 1.3; and, in each such case, immediately before and agreed that nothing in this clauseafter the consummation of the Transfer, and after giving effect thereto, no Default or Event of Default would exist.
Appears in 1 contract
Disposition of Assets. (a) The Borrower Company shall not, and shall not permit any of its Restricted Subsidiaries toSubsidiaries, to Dispose of any assets (including Intellectual Property, Proprietary Information, accounts and rights to payment), whether now owned or hereafter acquired, or enter into any agreement to make any Asset Sale exceptDisposition of such assets, except as permitted under subsection (b).
(b) Section 7.04(a) shall not apply to or restrict:
(i) Asset Sales in (A) the ordinary course Spin-Off Transaction; or (B) at any time prior to the Spin-Off Consummation Date, Dispositions of business New Ceridian Assets that would be permitted under the New Ceridian Credit Agreement if such assets were at such time assets of assets held for resale in the ordinary course of business or the trade in or replacement of assets in the ordinary course of businessNew Ceridian;
(ii) the concurrent exchange sale of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the proceeds of such sale are reasonably promptly, but in no event more than 30 days, applied to the purchase price of such replacement equipment; provided, however, that: (A) the replacement equipment has comparable value and is of the same type, and used for the same purpose, as the equipment sold; (B) the Person selling equipment under this subsection is the same Person that purchases any replacement equipment; and (C) any such sale is conducted at arm’s length and under commercially reasonable terms;
(iii) the transfer of assets by the Company (A) to any of its Material Subsidiaries if such transfer is a sale for fair market value and the consideration received by the Company is cash; or (B) to any Wholly-Owned Subsidiary;
(iv) Revocable Licenses in the Ordinary Course of Business of Intellectual Property of the assets so exchanged as determined by Company or its Subsidiaries to third parties (other than Xxxxxxx XX) upon commercially reasonable terms and that do not, singly or in the Borrower aggregate result in good faith; provided that a Material Adverse Effect;
(v) no Default (A) assignments and sales to a Permitted Xxxxxxx XX or Event Permitted Joint Ventures of Default then exists software used or would usable for the compilation of data solely derived from PPM Technology, and to the extent, but only to the extent, consistent with the Xxxxxxx XX Option Agreement; and (B) Revocable, non-exclusive licenses of software and other Intellectual Property to a Permitted Xxxxxxx XX or Permitted Joint Venture in the Ordinary Course of Business upon commercially reasonable terms that do not, singly or in the aggregate, result therefrom, in a Material Adverse Effect;
(wvi) the aggregate amount of all cash and Cash Equivalents received license by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any Company of its Restricted Subsidiaries in connection PPM Technology, solely for the purpose of audience measurement, to a Permitted Xxxxxxx XX to the extent, but only to the extent, consistent with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii)Xxxxxxx XX Option Agreement, and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case otherwise in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchangeRequired Note Holders;
(Bvii) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) transferable, exclusive U.S.-license by the Company of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in its “Critical Band Encoding Technology” to a Permitted BusinessJoint Venture or to Nielsen and the license to a Permitted Joint Venture or a Permitted Xxxxxxx XX of encoding patents, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faithextent, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject but only to the limitation of this clause (C) and shall not be taken into account in determining whether extent, consistent with the percentage of Operating Cash Flow specified in this clause (C) has been exceededXxxxxxx XX Option Agreement, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, otherwise in form and substance reasonably satisfactory to the Administrative Agent, a copy Required Note Holders;
(viii) the Disposition of assets or stock of Ceridian Info Tech (India) Private Limited and CSW Research Limited; provided that no Intellectual Property or Proprietary Information is Disposed of as part of any Shared Services Agreementsuch Disposition, Joint Sales Agreementother than Intellectual Property and Proprietary Information that is not materially related to the Arbitron Business; and further provided that the total aggregate value of all assets and stock transferred pursuant to this clause does not exceed $10,000,000;
(ix) the transfer by any Subsidiary of the Company of assets (upon voluntary liquidation or otherwise) to the Company or a Wholly Owned Subsidiary of the Company that is a Material Subsidiary;
(x) Dispositions or other transfers by the Company or its Subsidiaries totaling on a consolidated, Local Marketing Agreementaggregate basis for all such transfers in any fiscal year an amount not in excess of $15,000,000; provided that (A) each such transfer is otherwise permitted pursuant to the Note Documents, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time consideration paid to the Company or its Subsidiaries in connection with each such transfer is exclusively in the form of entering into such Station Sharing Arrangement cash, Cash Equivalents and/or other obligations to be paid to the Company or any Subsidiary in installments over a period of time, (C) unused transfers permitted by this subsection (b)(x) shall not accrue to the following year, and (D) after giving effect thereto) to each such transfer there shall exist no more than ten percent (10%) Default or Event of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing ArrangementsDefault;
(vxi) the sale Disposition of any assets of the Company or discount without recourse any Subsidiary pursuant to the terms and conditions of a Permitted Joint Venture; and
(xii) Goods held as inventory by the Borrower Company or any Restricted Subsidiary thereof of accounts receivable arising for sale to third parties in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted even if such goods may be identical to goods used as equipment by the Borrower Company or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor a Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause.
Appears in 1 contract
Disposition of Assets. The Borrower Company shall not, and shall not suffer or permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Asset Sale property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except:
(ia) Asset Sales in the ordinary course dispositions of business of assets held for resale in the ordinary course of business inventory, or the trade in used, worn-out or replacement of assets surplus equipment (including, without limitation, demonstration or pilot plants), all in the ordinary course of business;
(iib) the concurrent exchange sale of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the proceeds of such sale are reasonably promptly applied to the purchase price of such replacement equipment within ninety (90) days of each such sale;
(c) each Specified Asset Sale;
(d) dispositions not otherwise permitted hereunder which are made for fair market value of the assets so exchanged as determined by the Borrower in good faithvalue; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (Bi) at the time of entering into any disposition, no Event of Default shall exist or shall result from such Station Sharing Arrangement disposition, (and after giving effect theretoii) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable with respect to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) transactions involving the disposition of any Hedge Agreement;
assets with an aggregate book or fair market value in excess of $5,000,000, not less than 50% of the aggregate sales price from such disposition shall be paid in cash or Cash Equivalents, and (viiiiii) the transfer of assets to the Borrower aggregate book or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such all assets so sold by the Company and its Subsidiaries, together, shall not exceed (x) 6% of the Tangible Assets of the Company and its Subsidiaries on a consolidated basis during any twelve month period with Tangible Assets to be measured as determined in good faith at of the time beginning of such transfer) period, and (Cy) 15% of the transfer by any Non-Guarantor Subsidiary Tangible Assets of the Company and its assets Subsidiaries on a consolidated basis during the term of this Agreement, with Tangible Assets to any other Non-Guarantor Subsidiarybe measured as of March 31, 2010;
(xie) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form transfer of cash or Cash Equivalents not otherwise prohibited by the Loan Documents;
(f) Investments permitted under Section 8.04 and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, dispositions pursuant to a merger or other consolidation permitted under Section 2.6(b)(iii8.03; and
(g) (it being understood and agreed that nothing in this clausetransfer of inventory, equipment or other assets from the Company to any Subsidiary which is not an Excluded Subsidiary or to the Company or any other such Subsidiary from any Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (CBIZ, Inc.)
Disposition of Assets. The Borrower No Loan Party shall, nor shall not, and shall not it permit any of its Restricted Subsidiaries to, directly or indirectly make any Asset Sale Disposition, except:
(ia) Asset Sales in the ordinary course Dispositions of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets inventory in the ordinary course of business;
(iib) the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets)Dispositions, for which the Borrower fair value, of worn-out or any Restricted Subsidiary receives cash, Cash Equivalents obsolete equipment or Station operating other assets at least equal not necessary or otherwise useful to the fair market value conduct of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchangeLoan Parties’ business;
(Bc) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including Dispositions from any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower Loan Party or any of its Restricted Subsidiaries to third Persons Borrower or any other Loan Party;
(d) Dispositions of Permitted Investments, cash and Cash Equivalents in connection with any transaction not prohibited under this Agreement;
(e) the write-off, discount, sale or other Disposition of defaulted or past-due receivables and similar obligations in the ordinary course of business that do and not interfere undertaken as part of an accounts receivable financing transaction;
(f) non-exclusive licenses and sublicenses of intellectual property rights in the ordinary course of business not interfering in any material respect with the ordinary conduct of or materially detracting from the value of the business of the Borrower or any of its Loan Parties and their Restricted Subsidiaries;
(viig) the disposition abandonment or Disposition of intellectual property rights that are no longer used or useful in the business of the Loan Parties and their Restricted Subsidiaries;
(h) to the extent constituting Dispositions, Permitted Liens permitted under Section 7.2, Restricted Payments permitted under Section 7.4 or investments permitted under Section 7.5;
(i) the disposition, termination or unwinding of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xij) (Ai) the sale termination of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business leases in the ordinary course of business and (2ii) be required to remain the expiration of any option agreement in future compliance with Applicable Laws and final orders respect of the FCCreal or personal property;
(xiik) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements Dispositions of Section 2.6(b)(iii(i) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets DBR Solar and/or Pecos Renewables solely to the extent that Investments made into such sale entities following the Closing Date do not exceed $2,500,000 in the aggregate, and (ii) Unrestricted Subsidiaries, Immaterial Subsidiaries or other disposition is required by Applicable Laws or final order of the FCCJoint Ventures; and
(l) Dispositions not otherwise permitted under this Section 7.8; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clausethat:
Appears in 1 contract
Samples: Credit Agreement (LandBridge Co LLC)
Disposition of Assets. The Borrower Company shall not, and shall not suffer or permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Asset Sale property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except:
(ia) Asset Sales in the ordinary course dispositions of business of assets held for resale in the ordinary course of business inventory, or the trade in used, obsolete, uneconomic, worn-out or replacement of assets surplus equipment or intellectual property, all in the ordinary course of business;
(iib) the concurrent exchange sale of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal equipment to the fair market value extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the assets so exchanged as determined proceeds of such sale are reasonably promptly applied to the purchase price of such replacement equipment;
(c) dispositions of Permitted Receivables pursuant to Permitted Receivables Purchase Facilities;
(d) sales, transfers and leases between the Company and any of its Restricted Subsidiaries or between any of its Restricted Subsidiaries and another of its Restricted Subsidiaries for book value;
(e) licenses or leases of property in the ordinary course of business;
(f) Investments permitted pursuant to Section 7.4;
(g) discounts of accounts receivable by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower Company or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) the ordinary course of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchangecollection;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (xh) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchangetransactions set forth on Schedule 7.2; and
(Ci) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a dispositions not otherwise permitted hereunder which are made for fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangementsvalue; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (Bi) at the time of entering into any disposition, no Event of Default shall exist or shall result from such Station Sharing Arrangement disposition, (ii) the aggregate sales price from such disposition shall be paid in cash, and after giving effect thereto(iii) no more than ten percent (10%) the aggregate value of all assets so sold by the Operating Cash Flow of the Borrower Company and its Restricted Subsidiaries, together, in each case determined any fiscal year shall not exceed 10% of the Consolidated Tangible Assets for such fiscal year measured as of the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) date of the last such sale or discount without recourse at any time in such fiscal year based on the last financial statements delivered by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted Company pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause6.1.
Appears in 1 contract
Samples: Credit Agreement (Trylon Corp/Mi/)
Disposition of Assets. The Borrower shall notSell, lease, assign, transfer or otherwise dispose of any property, business or assets (including, without limitation, the capital stock or membership interests of any subsidiary accounts, and shall not permit any of its Restricted Subsidiaries to, make any Asset Sale except:
leasehold interests) except for (i) Asset Sales sales of inventory, materials and equipment in the ordinary course of business for fair market value; (ii) dispositions of surplus, obsolete or damaged Inventory, (iii) dispositions of surplus, obsolete or damaged equipment, in the ordinary course of business (provided that the aggregate amount of the net proceeds from sales shall not exceed $1,000,000), (iv) the sale of all the capital stock or substantially all the assets of Itronix and/or the sale of all the capital stock of or substantially all the assets of da Vinci; provided that (A) any such sale is consummated for fair market value as determined by the Agent, (B) an amount equal to 100% of the Net Proceeds of any such sale is deposited into the Asset Sale Proceeds Account, (C) at least 80% of the consideration for any such sale is cash consideration, and (D) the other terms and conditions of any such sale shall be satisfactory to the Agent, (v) the sale or other disposition of other property, provided that (A) the aggregate amount of net proceeds from such sales or other dispositions shall not to exceed $4,000,000, (B) such sale or other disposition is for fair market value, (C) an amount equal to 100% of the Net Proceeds of any such sale is deposited into the Asset Sale Proceeds Account and (D) the terms and conditions of any such sale shall be satisfactory to the Agent, (vi) sales, assignments, transfers and pledges of receivables in connection with a Permitted Receivables Financing, (vii) intercompany sales, assignments and transfers of assets held for resale (A) among Foreign Subsidiaries in the ordinary course of business or otherwise in connection with operational restructuring efforts reasonably acceptable to the trade Agent, (B) among the Guarantors or (C) by any Subsidiary to the Borrower, (viii) assignments and licenses of intellectual property in or replacement of assets connection with providing products and services in the ordinary course of business;
(ii) the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (xix) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless lease or sublease of whether real property not constituting a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, sale and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower leaseback or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clausesimilar financing arrangement.
Appears in 1 contract
Samples: Revolving Credit, Guaranty and Security Agreement (Acterna Corp)
Disposition of Assets. The Borrower Company shall not, and shall not permit any other Loan Party to, directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any of its Restricted Subsidiaries toproperty or suffer to exist any Involuntary Disposition (any such transaction, make excluding, for the avoidance of doubt, (i) any Asset Sale transfer of cash in the ordinary course of business, (ii) any issuance by a Person of its own Equity Interests and (iii) any transfer by a Pledgor of assets not constituting Collateral at any time under the Loan Documents, a “Disposition”), including accounts and notes receivable, with or without recourse, and the Equity Interests in any Subsidiary, except:
(a) Dispositions of inventory in the ordinary course of business and Dispositions of used, worn-out, obsolete or surplus assets (including equipment);
(b) Dispositions of equipment to the extent that such equipment is exchanged for credit against the purchase price of other revenue-producing equipment or capital assets or the proceeds of such Disposition are reasonably promptly applied to the purchase price of such other revenue-producing equipment or capital assets;
(c) Dispositions between and among Loan Parties, Dispositions from any Subsidiary that is not a Loan Party to the Company or a Wholly-Owned Subsidiary and Dispositions permitted by Section 8.03;
(d) Dispositions of accounts receivable, lease receivables, other financial assets and other rights and related assets pursuant to a Permitted Securitization otherwise permitted by Section 8.05(a);
(e) sale/leaseback transactions involving an aggregate consideration not to exceed $100,000,000 after the date hereof;
(f) the transfer of Lease Assets solely in connection with Leasing Transactions;
(g) Dispositions of cash equivalents or short-term marketable securities;
(h) the granting of non-exclusive licenses of patents, trademarks and copyrights by the Company or any Subsidiary and Dispositions of technical data packages;
(i) Asset Sales Dispositions identified on Schedule 8.02;
(j) Dispositions of accounts receivable arising out of sales by the Company or its Domestic Subsidiaries to Persons domiciled outside of the United States, Dispositions of accounts receivable with extended terms and Dispositions of defaulted accounts receivable without credit recourse in transactions that do not constitute securitizations, in each case in the ordinary course of business consistent with past practice;
(k) Dispositions in the ordinary course of business of assets held for resale tangible property as part of a like-kind exchange under Section 1031 of the Code;
(l) Dispositions in the ordinary course of business or consisting of the trade in or replacement abandonment of assets intellectual property rights that, in the ordinary course reasonable good faith determination of the applicable Loan Party, are not material to the conduct of its business;
(iim) the concurrent exchange Dispositions of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value property located outside of the assets so exchanged as determined United States (and not moved outside the United States in anticipation of such Disposition);
(n) Dispositions to effectuate tax reorganizations otherwise permitted by Section 8.06(e);
(o) any Involuntary Disposition; and
(p) Dispositions that are not permitted by the Borrower in good faithforegoing provisions of this Section 8.02; provided that (vi) any such Disposition is made for fair market value; (ii) no Default or Event of Default then exists shall exist at the time of or would shall result therefromfrom any such Disposition; and (iii) either (A) such Disposition is a Material Disposition, at least 75% of the consideration for such Disposition (win excess of the first $20,000,000 of consideration received for all such Dispositions in the fiscal year in which such Disposition is consummated) is payable in cash or cash equivalents and the aggregate amount of all cash and Company has notified the Agent prior to such Disposition that the Net Cash Equivalents received by the Borrower or Proceeds thereof (without any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent reduction pursuant to clause (35%a)(v) of the aggregate consideration for such asset exchange, (x) the aggregate amount definition of all cash and Net Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(iiProceeds) shall be applied pursuant to prepay Term Loans in accordance with Section 2.6(b)(iii), and (z2.11(d) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
or (B) at the request aggregate value of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory all assets disposed of the Borrower, (1) certifying that the property or other consideration received by the Borrower Company and its Restricted Subsidiaries is at least equal pursuant to this subsection (p) (excluding Dispositions described in the fair market value of the assets so exchanged, preceding clause (2A)) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange during any fiscal year shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (xA) $75,000,000 250,000,000 and (B) 10% of the consolidated tangible assets of the Company and its Subsidiaries as of the beginning of such fiscal year (or, if at the time of determination financial statements have not been delivered reflecting such amount, as of the beginning of the immediately preceding fiscal year) and (y) one percent after the Effective Date shall not exceed the greater of (1.0%A) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration $625,000,000 and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance 25% of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) consolidated tangible assets of such Restricted Subsidiary the Company and its Subsidiaries as reflected in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, financial statements delivered pursuant to Section 2.6(b)(iii7.01(a); provided that in no Event of Default under the case of foregoing clause (x) or (y) shall result from any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior Disposition to the entry into any Station Sharing Arrangement (or extent such later time as may be approved Disposition was permitted by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (Bthis Section 8.02(p) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseDisposition was made.
Appears in 1 contract
Samples: Credit Agreement (Oshkosh Corp)
Disposition of Assets. The Borrower Company shall not, and shall not suffer or permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Asset Sale property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except:
(ia) Asset Sales in the ordinary course dispositions of business of assets held for resale in the ordinary course of business inventory, equipment or the trade in or replacement of assets operations, all in the ordinary course of business;
(iib) the concurrent exchange sale of a television broadcast station equipment or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal operations to the fair market value extent that such assets are exchanged for credit against the purchase price of similar replacement assets, or the assets so exchanged as determined proceeds of such sale are reasonably promptly applied to the purchase price of such replacement assets;
(c) dispositions of accounts, inventory, equipment or discontinued operations by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower Company or any Subsidiary in connection with to the Company or any asset exchange Subsidiary pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchangereasonable business requirements; and
(Cd) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a dispositions not otherwise permitted hereunder which are made for fair market value at the time received thatvalue; PROVIDED, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (Bi) at the time of entering into any disposition, no Event of Default shall exist or shall result from such Station Sharing Arrangement disposition, (ii) the aggregate sales price from such disposition shall be paid in cash, except that non-cash proceeds may be received so long as all such non-cash proceeds received from the Closing Date through the Revolving Termination Date does not in the aggregate at any time outstanding exceed $150,000,000 MINUS the aggregate amount of write-offs taken against all such non-cash proceeds received after the Closing Date, and after giving effect thereto(iii) no more than ten percent (the aggregate value of all assets so sold by the Company and its Subsidiaries exclusive of those assets identified on Schedule 7.02, together, shall not exceed in any fiscal year 10%) % of the Operating Cash Flow Company and its Subsidiaries' consolidated tangible assets as of the Borrower last day of the preceding fiscal year. There shall be excluded from the calculation of the value of all assets sold in any year, any sale or disposition of any promissory notes or other non-cash proceeds received by the Company and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business Subsidiaries during such year in connection with the compromise or collection thereof;
a disposition otherwise permitted under this clause (vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(bd);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause.
Appears in 1 contract
Disposition of Assets. The Borrower shall will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one transaction or a series of transactions) any Asset Sale property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except:
(ia) Asset Sales in the ordinary course dispositions of business of assets held for resale in the ordinary course of business inventory, or the trade in used, worn-out or replacement of assets surplus equipment, all in the ordinary course of business;
(b) dispositions of accounts receivable in connection with (i) the collection or compromise thereof, all in the ordinary course of business, or (ii) the concurrent exchange sale or transfer by WFB of its credit card receivables in a television broadcast station transaction to securitize such receivables;
(c) licenses, sublicenses, leases or subleases granted to others in the ordinary course of long-term Station operating assets business and not interfering in any material respect with the business of the Borrower and its Subsidiaries;
(d) sales of improved or cash unimproved parcels of real estate (including i) in the Capital Stock ordinary course of business (including, without limitation, sales of entire developments) by Subsidiaries in the business of real estate development or (ii) that are not required or anticipated to be required for the Borrower’s or any Subsidiary’s business purposes;
(e) the sale of equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the proceeds of such sale are applied with reasonable promptness to the purchase price of such replacement equipment;
(f) sales or transfers by a Person which owns long-term Station operating assets), for which Subsidiary to the Borrower or any Restricted other Subsidiary receives cash(other than an Excluded Subsidiary or WFB);
(g) other dispositions of property during the term of this Agreement, Cash Equivalents or Station operating the net book value of which in the aggregate does not exceed 8% of the Borrower’s consolidated total assets at least equal to as shown on its balance sheet for the fair market value immediately prior fiscal year;
(h) commercially reasonable securitizations of the assets so exchanged as determined by of WFB;
(i) the sale or other disposition of (i) Investments that do not constitute Investments of the Borrower in good faith; any Subsidiary or of any Subsidiary in any other Subsidiary, and (ii) economic development bonds;
(j) the sale, merger, consolidation of WFB or all or substantially all of its assets, provided that (v) no Default or Event of Default then exists or would result therefrom, (wi) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide provides written notice to the Administrative Agent not less than ten (in each case in form and substance reasonably satisfactory 10) days prior to the Administrative Agent):
closing of any such transaction, and (A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(Bii) at the request time of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) transaction no Default or Event of Default shall have occurred and be continuing continuing;
(k) (i) the sale, merger, consolidation, liquidation, winding up or would result therefromdissolution of any Excluded Subsidiary, provided that the Borrower will cause such sale, merger, consolidation, liquidation, winding up or dissolution to be completed not later than nine (9) months from the Effective Date, and (ii) the sale, merger, consolidation, liquidation, winding up or dissolution of any Subsidiary (other than WFB) that, after the Effective Date, does not pass the Material Subsidiary Test and, in each case, provided that (1) the Borrower provides to the Administrative Agent written notice prior to or within ten (10) days after the closing of any such transaction, (B2) at least seventy-five percent (75%) the sum of the consideration received book value of the assets transferred in each any such Asset Sale transactions in any consecutive 365 day period shall not exceed 15% of the consolidated total assets of the Borrower and the Subsidiaries as of the end of the most recently ended calendar month preceding any such transaction (or series excluding the assets of related Asset Salesthe Excluded Subsidiaries), and (3) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received of, and after giving effect to, such transaction no Default or Event of Default shall have occurred and be continuing; or
(l) any other sale, assignment, lease, conveyance, transfer or other disposition of property that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales dispositions made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith6.12, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory do not constitute more than 25% of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow consolidated total assets of the Borrower and its Restricted the Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market calculated on a book value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clausebasis.
Appears in 1 contract
Disposition of Assets. The Borrower Company shall not, and shall not suffer or permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Asset Sale property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except:
(ia) Asset Sales in the ordinary course dispositions of business of assets held for resale in the ordinary course of business inventory, or the trade in used, worn-out or replacement of assets surplus equipment (including, without limitation, demonstration or pilot plants), all in the ordinary course of business;
(iib) the concurrent exchange sale of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the proceeds of such sale are reasonably promptly applied to the purchase price of such replacement equipment within ninety (90) days of each such sale;
(c) each Specified Asset Sale;
(d) dispositions not otherwise permitted hereunder which are made for fair market value of the assets so exchanged as determined by the Borrower in good faithvalue; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (Bi) at the time of entering into any disposition, no Event of Default shall exist or shall result from such Station Sharing Arrangement disposition, (and after giving effect theretoii) no more not less than ten percent (10%) 50% of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, aggregate sales price from such disposition shall be attributable to Stations that are subject to Station Sharing Arrangements;
paid in cash or Cash Equivalents, and (viii) the sale aggregate book or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such all assets so sold by the Company and its Subsidiaries, together, shall not exceed (x) 6% of the Tangible Assets of the Company and its Subsidiaries on a consolidated basis during any twelve month period with Tangible Assets to be measured as determined in good faith at of the time beginning of such transfer) period, and (Cy) 15% of the transfer by any Non-Guarantor Subsidiary Tangible Assets of the Company and its assets Subsidiaries on a consolidated basis during the term of this Agreement, with Tangible Assets to any other Non-Guarantor Subsidiarybe measured as of December 31, 2005;
(xie) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form transfer of cash or Cash Equivalents not otherwise prohibited by the Loan Documents;
(f) Investments permitted under Section 8.04 and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, dispositions pursuant to a merger or other consolidation permitted under Section 2.6(b)(iii8.03; and
(g) (it being understood and agreed that nothing in this clausetransfer of inventory, equipment or other assets from the Company to any Subsidiary which is not an Excluded Subsidiary or to the Company or any other such Subsidiary from any Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (CBIZ, Inc.)
Disposition of Assets. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, make Make any Asset Sale exceptDisposition, except the following:
(ia) Asset Sales in the ordinary course of business of assets held for resale in the ordinary course of business or the trade in or any replacement of assets in Equipment that is worn, damaged or obsolete with Equipment of like function and value, if the ordinary course replacement Equipment is acquired substantially contemporaneously with such disposition and is free of businessLiens;
(iib) a sale of Inventory in the Ordinary Course of Business;
(c) termination of a lease of real or personal Property that is not necessary for the Ordinary Course of Business, could not reasonably be expected to have a Material Adverse Effect and does not result from an Obligor’s default;
(d) the concurrent exchange sale of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), Property for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to consideration not less than the fair market value thereof and (i) with respect to sales not covered by clauses (ii) through (v) below, having an aggregate fair market value not in excess of $15,000,000 in any twelve consecutive month period; (ii) in connection with the closure or relocation of any facilities; (iii) such sale is of the assets so exchanged as determined by or the Equity Interests of the Hyster Mauritius Entities or, prior to the Australian Borrower Activation Date, the Australian Subsidiaries; (iv) such sale is of the assets or Equity Interests of any Subsidiary engaged in good faithretail operations that is neither an Obligor nor a Pledged Entity; provided that or (v) no Default or Event such sale is of Default then exists or would result therefromthe plants and/or Property described on Schedule 1.1(d); provided, however, that (A) none of the Property subject to sales permitted above shall constitute Collateral, (wB) the aggregate amount of all any non-cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with consideration resulting from such asset exchanges sale (which shall be limited to not exceed thirtymore than twenty-five percent (3525.0%) of the aggregate total consideration for such asset exchangesale) shall, to the extent received by an Obligor, be pledged or assigned to Agent pursuant to the applicable Security Documents to which it is a party, (xC) with respect to any such sale by a Borrower, such Borrower applies the aggregate amount of all cash and Cash Equivalents paid by Net Proceeds thereof to the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), Loans and (zD) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form before and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchangesale, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii)continuing;
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viiie) the transfer of assets to the Borrower or Property from any other Credit Party pursuant Subsidiary to any other transaction permitted pursuant to Section 7.4(b)Obligor, among any of the Obligors, or among any Subsidiaries not constituting Obligors, in each case, otherwise in accordance with the Loan Documents;
(ixf) Investments and dispositions of Investments in cash and Cash EquivalentsEquivalents permitted pursuant to Section 10.2.4(a);
(Ag) the transfer of Property permitted in connection with transactions permitted in Section 10.2.7;
(h) the sale of accounts receivable and related assets under any receivables factoring, discounting facility or receivables assignment facility by any Credit Party Foreign Subsidiary that is not a Borrower in an aggregate amount not to exceed $10,000,000 outstanding at any time;
(i) Asset Dispositions of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that Property not constituting Collateral in connection with any such transfer, such Credit Party shall sale-leaseback transaction not pay more than an amount equal to exceed $100,000,000 (less any Purchase Money Debt outstanding under Section 10.2.1(d)) in the fair market value aggregate during the term of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;this Agreement; and
(xij) additional Asset Dispositions of Property other than Inventory and Accounts (A) and, following the sale of obsoletePP&E Component Implementation Date, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries Equipment and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%Real Estate) of the consideration received Obligors which may be approved by Agent in each such Asset Sale (or series its sole discretion and which result in Net Proceeds of related Asset Sales) is not more than $5,000,000 in the form aggregate and $2,000,000 in any single transaction in any Fiscal Year. Notwithstanding the foregoing, any disposition of cash or Cash Equivalents and Equipment that is subject to a fixed charge under any Foreign Security Document to which any UK Domiciled Obligor is a party shall require the Net Proceeds (Asset Sales) consent of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseAgent.
Appears in 1 contract
Samples: Loan Agreement (Hyster-Yale Materials Handling, Inc.)
Disposition of Assets. The Borrower Company shall not, and shall not suffer or permit any of its Restricted Subsidiaries Subsidiary (other than any Project Finance Subsidiary or any International Subsidiary) to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Asset Sale assets (including accounts and notes receivable, with or without recourse, and including any interest in any Subsidiary) or enter into any agreement to do any of the foregoing, except:
(i) Asset Sales dispositions of inventory (including inventory comprised of electric energy, gas, oil, coal, aggregate and other materials and products generated, manufactured, produced, mined or purchased for sale, distribution or use in the ordinary course of business of assets held for resale in the ordinary course of business business), or the trade in used, worn-out, damaged or replacement of assets surplus equipment, all in the ordinary course of business;
(ii) the concurrent exchange sale of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal equipment to the fair market value extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event proceeds of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that sale are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be reasonably promptly applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion purchase price of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably requestreplacement equipment;
(iii) dispositions of assets by the Company or any Subsidiary to the Company or any Subsidiary (other Asset Sales (including any Asset Sale than a Project Finance Subsidiary) pursuant to a Spectrum Tender)reasonable business requirements;
(iv) exchanges of property on which recognition of gain or loss would be exempted from recognition pursuant to section 1031 of the Code; or 721510353 03 54
(v) the sale, assignment or other transfer of accounts receivable, lease receivables or other rights to payment pursuant to any Securitization Transaction; provided that dispositions not prohibited by other provisions of this Agreement and not otherwise permitted by the foregoing which are made for fair market value are permitted so long as (Aw) at the time of any disposition, no Default or Event of Default shall have occurred and be continuing exist or would shall result therefromfrom such disposition, (Bx) at least seventy-five percent the aggregate sales price from such disposition shall be paid (75%1) in cash, (2) in marketable securities that are the subject of widely or regularly distributed standard price quotations, and/or (3) through the consideration received in each issuance of indebtedness by the buyer of such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalentsassets; provided that cash and Cash Equivalents the aggregate outstanding principal amount of all such indebtedness shall include not at any Designated Non-Cash Consideration having a fair market value at the time received thatexceed $35,000,000, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) the aggregate value of Consolidated Total Assets (calculated at all assets so sold by the time of receipt of such Designated Non-Cash Consideration Company and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made its Subsidiaries pursuant to this Section 7.4(a)(iiiclauses (i) during the immediately preceding 12-month period through (such portion to be determined by the Borrower in good faithiv), without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower)together, shall not exceed fifteen percent in any fiscal year 20% of total consolidated assets (15%as determined in accordance with GAAP) of the Company and its Subsidiaries, based upon the most recent financial statements delivered to the Administrative Agent under Section 6.01, and (z) the aggregate amount of all Securitization Obligations shall not at any time exceed $75,000,000; and provided, further, that in no event shall the Company sell, assign, lease, convey, transfer or otherwise dispose of any capital stock or other equity interests in any of the Principal Operating Cash Flow for such Reference Period; provided that any Asset Sale Subsidiaries, except pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (merger or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to in accordance with Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause7.03.
Appears in 1 contract
Disposition of Assets. The Borrower shall will not, and shall will not permit or cause any Subsidiary to, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) all or any portion of its assets, business or properties (including, without limitation, any Capital Stock of any Subsidiary ), or enter into any arrangement with any Person providing for the lease by the Borrower or any Subsidiary as lessee of any asset that has been sold or transferred by the Borrower or such Subsidiary to such Person, or agree to do any of its Restricted Subsidiaries tothe foregoing, make any Asset Sale exceptexcept for:
(i) Asset Sales sales of inventory and licenses or leases of Intellectual Property and other property and assets and termination or disposition of licenses or leases, in the ordinary course of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets each case in the ordinary course of business;
(ii) the concurrent sale or exchange of a television broadcast station used or obsolete equipment to the extent (y) the proceeds of long-term Station operating assets such sale are applied towards, or cash such equipment is exchanged for, replacement equipment or (including z) such equipment is no longer necessary for the Capital Stock operations of a Person which owns long-term Station operating assets), for which the Borrower or its applicable Subsidiary in the ordinary course of business;
(iii) the sale and lease back of personal property of the Borrower or any Restricted Material Subsidiary, the Net Proceeds of which are used to prepay the Loans and reduce the Commitments in accordance with the terms of SECTION 2.6 hereof;
(iv) the sale, lease or other disposition of assets by a Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) or to a Subsidiary Guarantor if, immediately after giving effect thereto, no Default or Event of Default then exists would exist; and provided, further, that sales, leases, or would result therefrom, (w) the aggregate amount other dispositions of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received thatPermitted Joint Ventures, when taken together aggregated with all other Designated Non-Cash Consideration previously received unsecured intercompany Indebtedness of Permitted Joint Ventures permitted under SECTION 8.2(IV) 81 88 and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrowerrestricted investments permitted under SECTION 8.5(IX), shall not exceed fifteen percent (15%) of the Operating Cash Flow exceed, for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceededconsecutive twelve month period, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that $10,000,000 in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), aggregate or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document $3,000,000 individually with respect to such Station Sharing Arrangement Permitted Joint Ventures and, with respect to SECTION 8.5(ix), Permitted Minority Investments (including Purchase Amounts incurred in connection with Permitted Joint Ventures and (B) at Permitted Minority Investments and other amounts consented to by the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, Required Lenders in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangementswriting);
(v) the sale or discount without recourse by disposition of assets outside the ordinary course of business for fair value and for cash, provided that (w) the Net Cash Proceeds from such sales or dispositions, when aggregated with the Net Cash Proceeds from all other sales and dispositions not otherwise specifically permitted under this Section that are consummated during the same fiscal quarter or the period of three fiscal quarters immediately prior thereto do not exceed $250,000 in the aggregate for the Borrower and its Subsidiaries, (x) such Net Cash Proceeds are delivered to the Agent promptly after receipt thereof for application in prepayment of the Loans and reduction of the Commitments in accordance with the provisions of SECTION 2.6, (y) in no event shall the Borrower or any Restricted Material Subsidiary thereof sell or otherwise dispose of accounts receivable arising any of the Capital Stock of any Material Subsidiary, and (z) immediately after giving effect thereto, no Default or Event of Default would exist;
(vi) the sale and lease back transactions described on SCHEDULE 8.4, the Net Proceeds of which are used to reduce the Loans and Commitments in accordance with the terms of SECTION 2.6 hereof; and
(vii) the sale or disposition of immaterial assets by an immaterial Subsidiary in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clausebusiness.
Appears in 1 contract
Disposition of Assets. The Borrower shall not, Company will not and shall will not permit any other member of the Group to, directly or indirectly, sell, lease, transfer or otherwise dispose of (collectively a “Disposition”) any of its Restricted Subsidiaries toassets unless (a) such Disposition is for fair value and on arm’s-length commercial terms, (b) at least 90% of the consideration received in such Disposition is cash and cash equivalents and (c) to the extent the Net Cash Proceeds realized upon such Disposition constitute Relevant Net Cash Proceeds (calculated as provided below), the Noteholders’ Pro Rata Share of such Relevant Net Cash Proceeds are applied within 20 Business Days of receipt to prepay the Notes pursuant to Section 8.2 or in lieu of such prepayment of the Notes the Company may make any Asset Sale exceptan offer to all holders of Notes to purchase, at not less than par, Notes on a pro rata basis in an aggregate unpaid principal amount at least equal to the Noteholders’ Pro Rata Share of such Relevant Net Cash Proceeds, which offer shall remain open for at least 10 Business Days, and the requirements of this Section 10.4 with respect to prepayment of Notes shall be deemed to be satisfied with respect to such Disposition if such offer is made and, if accepted, consummated; provided, however, that the following Dispositions shall not be taken into account for purposes of this Section 10.4:
(i) Asset Sales Dispositions of inventory made in the ordinary course of trading of the disposing entity;
(ii) Dispositions of cash and cash equivalents;
(iii) any Disposition (x) by the Company to a Guarantor, by a Guarantor to the Company or another Guarantor or by the Company or a Guarantor to another directly or indirectly wholly owned member of the Group or (y) for fair value, by any non-Guarantor to the Company, a Guarantor or another member of the Group;
(iv) Dispositions of shop premises (or interests therein) in the ordinary course of business and on arm’s length commercial terms, provided that the Net Cash Proceeds received in respect of assets held for resale such Dispositions shall not exceed $1,000,000 (or its equivalent in the relevant currency or currencies of payment) annually;
(v) any Disposition or series of linked Dispositions in the ordinary course of business or the trade in or replacement on arm’s-length commercial terms of assets in the ordinary course of business;
(ii) the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of which shall not exceed $100,000 (or its equivalent in the relevant currency or currencies of payment);
(vi) Dispositions of damaged, worn out, obsolete or redundant assets so exchanged as determined by the Borrower in good faith; provided that on arms’-length commercial terms;
(vvii) no Default or Event any Disposition of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary Receivables in connection with such asset exchanges shall a securitization permitted by Section 10.3(g);
(viii) any Disposition as a result of any Lien permitted by Section 10.3;
(ix) any Disposition which constitutes the payment of a lawful Restricted Payment provided that it does not exceed thirty-five percent (35%) constitute an Event of the aggregate consideration for such asset exchange, Default;
(x) the aggregate amount any Disposition of all cash assets in exchange for other assets comparable or superior as to type, value and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchangequality;
(Bxi) at the request any Disposition of the Administrative Agent Intellectual Property (in its sole discretionincluding allowing any registrations or any applications for registration of any Intellectual Property to lapse or be abandoned), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), which Intellectual Property shall not exceed fifteen percent $100,000 (15%or its equivalent in the relevant currency or currencies) in the aggregate in any financial year of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCCCompany;
(xii) Asset Sales any Disposition of shares pursuant to management of employee share option schemes or of shares held in connection with insurance and condemnation proceedingstreasury; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;and
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted Dispositions arising pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) or in connection with the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order liquidation of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing U.S. Deferred Compensation Plans. As used in this clauseSection 10.4,
Appears in 1 contract
Disposition of Assets. The From and after the Closing Date, the Parent Borrower shall not, and shall not suffer or permit any of its Restricted Subsidiaries to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise Dispose of (whether in one or a series of related transactions) any Asset Sale Property, except:
(a) (i) Asset Sales in the ordinary course Dispositions of business of assets held for resale in the ordinary course of business inventory, or the trade in worn-out, obsolete or replacement of assets in the ordinary course of business;
(ii) the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating surplus equipment and other tangible fixed assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form the Ordinary Course of Business, and substance reasonably satisfactory to (ii) Dispositions of other property that is immaterial and no longer used or useful in the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date conduct of the exchange;
(B) at the request business of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Parent Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged(including, (2) attaching financial calculations specifically demonstrating either without limitation, (x) Dispositions of any Property acquired in connection with a Permitted Acquisition that the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless Parent Borrower determines is or will not be useful or necessary in the conduct of whether a Suspension Period is in effect at the time business of such exchange) or the Parent Borrower and its Restricted Subsidiaries, (y) that Dispositions of Intellectual Property (including allowing registered Intellectual Property to lapse or be abandoned), the pro forma Leverage Ratio after giving effect Disposition of which would not reasonably be expected to such exchange shall not be greater than have, either individually or in the Leverage Ratio immediately prior to giving effect to such exchangeaggregate, a Material Adverse Effect and (3z) certifying that no Default allowing any registrations or Event any applications for registration of Default exists any immaterial Intellectual Property to lapse, expire or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably requestabandoned);
(iiib) other Asset Sales Dispositions of assets for Fair Market Value; provided that (including i) with respect to any Asset Sale Disposition pursuant to this subsection 5.2(b) for a Spectrum Tenderpurchase price in excess of the greater of (x) $40,000,000 and (y) 10.0% of Consolidated EBITDA (determined for the Test Period then most recently ended before the effective date of any binding agreement regarding such Disposition that sets forth the amount of such Designated Non-Cash Consideration or, if no such binding agreement exists, for the Test Period most recently ended before the receipt of such Designated Non-Cash Consideration), so long as not less than 75% of the aggregate consideration from such Disposition shall be paid in cash or Cash Equivalents (provided, however, that, for the purposes of this clause (i), (A) no Default any liabilities (as shown on the most recent balance sheet of the Parent Borrower provided hereunder or Event in the footnotes thereto) of Default the Parent Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Obligations, that are assumed by the transferee with respect to the applicable Disposition shall have occurred and be continuing or would result therefromdeemed to be cash, (B) at least seventy-five percent any securities received by the Parent Borrower or such Restricted Subsidiary from such transferee that are converted by the Parent Borrower or such Restricted Subsidiary into cash or Cash Equivalents (75%) to the extent of the consideration received in each such Asset Sale (cash or series Cash Equivalents received) within 270 days following the closing of related Asset Sales) is in the form of applicable Disposition shall be deemed to be cash or Cash Equivalents; provided that cash and Cash Equivalents shall include , (C) any Designated Non-Cash Consideration received by the Parent Borrower or such Restricted Subsidiary in respect of the applicable Disposition having a fair market value at the time received thatan aggregate Fair Market Value, when taken together with all other Designated Non-Cash Consideration previously received pursuant to this clause (C) that is outstanding at the time such Designated Non-Cash Consideration is received, not in excess of the greater of (x) $60,000,000 and (y) 15.0% of Consolidated EBITDA (determined for the Test Period then outstandingmost recently ended before the effective date of any binding agreement regarding such Disposition that sets forth the amount of such Designated Non-Cash Consideration or, if no such binding agreement exists, for the Test Period most recent ended before the receipt of such Designated Non-Cash Consideration), with the Fair Market Value of each item of Designated Non-Cash Consideration being measured on the effective date of any binding agreement regarding such Disposition that sets forth the amount of such Designated Non-Cash Consideration or, if no such binding agreement exists, at the time received and, in any case, without giving effect to subsequent changes in value, shall be deemed to be cash or Cash Equivalents) and (D) the 75% limitation referred to above shall be deemed satisfied with respect to any Disposition of assets in which the cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with the foregoing provision on an after-tax basis, if the proceeds before tax would have complied with the aforementioned 75% limitation, and (ii) no Borrower may Dispose of all or substantially all of the Property of such Borrower and its Subsidiaries taken as a whole pursuant to this clause (b) unless the surviving entity is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia or, in the case of an English Borrower, the laws of England and Wales, and expressly assumes all obligations of the relevant Borrower under the Loan Documents;
(c) (i) collection of Accounts in the Ordinary Course of Business, (ii) Dispositions of Cash Equivalents in the Ordinary Course of Business, (iii) conversions of Cash Equivalents and the Investments listed in Section 5.4(g)(i), into cash or other Cash Equivalents; and (iv) conversions of the long-term Investments referred to in Section 5.4(g) (and any gains thereon realized or accruing after the Closing Date) into other long-term Investments listed in Section 5.4(g)(i) or into cash or other Cash Equivalents;
(d) the cross-licensing, sublicensing or licensing of Intellectual Property in the Ordinary Course of Business and the non-exclusive licensing of Intellectual Property in the Ordinary Course of Business;
(e) the substantially contemporaneous exchange of Property for Property of a like or similar kind (other than as set forth in subsection 5.2(d)), to the extent that the Property (together with any cash or Cash Equivalents) received in such exchange is of a value substantially equivalent to or greater than the value of the Property exchanged as determined in good faith by the Parent Borrower;
(f) Dispositions restricted, and permitted, by Section 5.3;
(g) (i) any Disposition or issuance by any Subsidiary of the Parent Borrower of its own Stock or Stock Equivalents to the Parent Borrower or any Subsidiary of the Parent Borrower that is a Guarantor; provided, however, that the proportion of such Stock or Stock Equivalents of each class of such Stock (both on an outstanding and fully-diluted basis) or Stock Equivalents held by the Credit Parties, taken as a whole, does not decrease as a result of such Disposition or issuance, (ii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Subsidiary of the Parent Borrower, any Disposition or issuance by such Subsidiary of its own Stock or Stock Equivalents constituting directors’ qualifying shares or nominal holdings, and (iii) the sale or issuance of the Stock or Stock Equivalents of the Parent Borrower, so long as no Change of Control occurs or results from such sale or issuance;
(h) Dispositions resulting from any Event of Loss, 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 Parent Borrower or any Restricted Subsidiary;
(i) leases or subleases granted to third parties that do not materially interfere with the conduct of the business of the Parent Borrower and its Restricted Subsidiaries taken as a whole;
(j) the transfer of Property (i) by any Credit Party to any other Credit Party or (ii) from a Person which is not a Credit Party to (A) any Credit Party or (B) any other Person which is not a Credit Party;
(k) to the extent constituting a Disposition, Liens permitted by Section 5.1, Investments permitted by Section 5.4 (other than Section 5.4(q)) and Restricted Payments permitted by Section 5.7;
(l) the sale or issuance of the Stock or Stock Equivalents of any Person that is not a Credit Party to any other Person, including, without limitation, in connection with any tax restructuring activities not otherwise prohibited hereunder; provided that, upon giving Pro Forma Effect to any such activities, the Liens on the Collateral securing the Obligations, taken as a whole, would not be materially impaired;
(m) (i) sales or discounting, on a non-recourse basis and in the Ordinary Course of Business of past due Accounts in connection with the collection or compromise thereof and (ii) sales or discounting, on a non-recourse basis of past due Accounts in connection with the collection or compromise thereof (provided that in the case of this clause (ii), the aggregate amount of sales or discounting on a non-recourse basis in any Fiscal Year with respect to any such Accounts that are less than 90 days past due shall not exceed the greater of $12,000,000 and 2.5% of Consolidated EBITDA (determined at the time of such sales and discounting for the most recently completed Test Period));
(n) the Parent Borrower and its Restricted Subsidiaries may effect Sale Leasebacks conducted on an arm’s length basis for Fair Market Value and, immediately before and after giving effect thereto, no Event of Default has occurred and is continuing;
(o) the unwinding or termination of any Rate Contract permitted hereunder;
(p) Dispositions of non-core assets acquired in connection with a Permitted Acquisition which are (x) made in order to obtain antitrust approval, (y) necessary and advisable (determined by the Parent Borrower in good faith) to consummate an acquisition or (z) held for sale and not for continued operation of the Parent Borrower’s business;
(q) any issuance or sale of Stock or Stock Equivalents in, or Indebtedness or other securities of, an Unrestricted Subsidiary (other than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents) or a Restricted Subsidiary which owns an Unrestricted Subsidiary (other than an Unrestricted Subsidiary the primary assets of which are cash and/or Cash Equivalents) provided such Restricted Subsidiary owns no assets other than the Stock or Stock Equivalents of such an Unrestricted Subsidiary;
(r) Dispositions of Investments in joint ventures or any non-Wholly-Owned Subsidiary to the extent required by buy/sell arrangements (including tag, drag and the like) between the joint venture or similar parties set forth in the joint venture arrangement or similar binding agreements (in each case, that is binding upon the Parent Borrower or its Subsidiaries);
(s) Dispositions in connection with any Permitted Receivables Financing or Supply Chain Financing;
(t) any Disposition; provided that (x) the Fair Market Value of such Disposition does not exceed the greater of (xi) $75,000,000 60,000,000 and (ii) 15.0% of Consolidated EBITDA (determined at the time such Disposition is made for the most recently completed Test Period) per transaction and (y) one percent (1.0%) the aggregate Fair Market Value of Consolidated Total Assets (calculated at all Dispositions on or after the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made Closing Date pursuant to this Section 7.4(a)(iii5.2(t) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall does not exceed fifteen percent the greater of (15%i) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, $125,000,000 and (Dii) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 10030.0% of such Net Proceeds Consolidated EBITDA (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) determined at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined Disposition is made for the then applicable Reference most recently completed Test Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;); and
(vu) (i) any Disposition to effectuate the sale or discount without recourse by pre-Spin-Off reorganization pursuant to the Borrower or any Restricted Subsidiary thereof of accounts receivable arising Spin-Off Documents on substantially the terms described in the ordinary course of business in connection with the compromise or collection thereof;
Form 10 and (viii) leases, subleases, easements or licenses granted by the Borrower any other Disposition to Labcorp or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets pursuant to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any NonSpin-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseOff Documents.
Appears in 1 contract
Disposition of Assets. The Borrower Company shall not, and shall not suffer or permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Asset Sale property or assets (including accounts and notes receivable, with or without recourse) (each, a “Disposition”) or enter into any agreement to do any of the foregoing, except:
(ia) Asset Sales in the ordinary course dispositions of business of assets held for resale in the ordinary course of business inventory, or the trade in used, worn-out or replacement of assets surplus equipment (including, without limitation, demonstration or pilot plants), all in the ordinary course of business;
(iib) the concurrent exchange sale of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the proceeds of such sale are reasonably promptly applied to the purchase price of such replacement equipment within ninety (90) days of each such sale;
(c) each Specified Asset Sale;
(d) dispositions not otherwise permitted hereunder which are made for fair market value of the assets so exchanged as determined by the Borrower in good faithvalue; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (Bi) at the time of entering into any disposition, no Event of Default shall exist or shall result from such Station Sharing Arrangement disposition, (and after giving effect theretoii) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable with respect to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) transactions involving the disposition of any Hedge Agreement;
assets with an aggregate book or fair market value in excess of $5,000,000, not less than 50% of the aggregate sales price from such disposition shall be paid in cash or Cash Equivalents, and (viiiiii) the transfer of assets to the Borrower aggregate book or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such all assets so sold by the Company and its Subsidiaries, together, shall not exceed (x) 6% of the Tangible Assets of the Company and its Subsidiaries on a consolidated basis during any twelve (12) month period with Tangible Assets to be measured as determined in good faith at of the time beginning of such transfer) period, and (Cy) 15% of the transfer by any Non-Guarantor Subsidiary Tangible Assets of the Company and its assets Subsidiaries on a consolidated basis during the term of this Agreement, with Tangible Assets to any other Non-Guarantor Subsidiarybe measured as of December 31, 2017;
(xie) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form transfers of cash or Cash Equivalents not otherwise prohibited by the Loan Documents;
(f) Investments permitted under Section 8.04 and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, dispositions pursuant to a merger or other consolidation permitted under Section 2.6(b)(iii8.03; and
(g) (it being understood and agreed that nothing in this clausetransfers of inventory, equipment or other assets from the Company to any Subsidiary which is not an Excluded Subsidiary or to the Company or any other such Subsidiary from any Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (CBIZ, Inc.)
Disposition of Assets. The Borrower shall not, and Obligors shall not permit Dispose of (whether in one or a series of transactions) any property (including accounts and notes receivable with or without recourse and Capital Stock of its Restricted Subsidiaries toany Subsidiary whether newly issued or otherwise), make any Asset Sale except:
(a) (i) Asset Sales Dispositions of inventory and equipment in the ordinary course of business, (ii) Dispositions of cash and Cash Equivalents and (iii) Dispositions of assets obtained through foreclosure or otherwise through the exercise of remedies in respect of obligations owed by a third party to the Parent or any of its Subsidiaries or otherwise in respect of mortgage loans insured by the Parent or any of its Subsidiaries;
(b) the sale of property to the extent that such property is exchanged for credit against the purchase price of replacement property or the proceeds of such sale are reasonably promptly applied to the purchase price of such replacement property;
(c) Dispositions by the Parent or any of the Borrowers of Investments permitted under this Agreement, in each case, consistent with the investment policy of the Parent or such Borrower in effect from time to time, as the case may be;
(d) Dispositions by the Parent or any Borrower to the Parent or any Borrower;
(e) Dispositions by the Parent or the Borrowers in connection with a Specified Stock Buyback;
(f) obsolete, surplus or worn out property disposed of by the Parent or any Borrower in the ordinary course of business of assets held the Parent and such Xxxxxxxx;
(g) transfers resulting from any casualty or condemnation or expropriation of property or assets;
(h) licenses or sublicenses of intellectual property and general intangibles and licenses, leases or subleases of other property (A) in the ordinary course of business of the Parent and any Borrower and which do not materially interfere with the business of the Parent or any Borrower or (B) pursuant to Section 4.14 of the Aurora Transaction Agreements;
(i) Dispositions consisting of (A) any transaction permitted by Section 7.05 (other than Section 7.05(a)(i)), (B) the making of any Investments permitted by Section 7.07, (C) the creation, incurrence or assumption of any Lien permitted under Section 7.02, and (D) the making of any Restricted Payments permitted by Section 7.06;
(j) issuances of Capital Stock pursuant to and in accordance with equity compensation plans or programs and other benefit and compensation plans, programs or agreements for resale directors, officers, employees, managers or consultants of the Parent and its Subsidiaries;
(k) the sale, discount, forgiveness or other compromise of notes or other accounts in the ordinary course of business or the trade in or replacement of assets in the ordinary course of businessconnection with collection thereof;
(l) issuances of Capital Stock (i) by the Parent or (ii) by a Borrower to the concurrent exchange of a television broadcast station or of long-term Station operating Parent;
(m) Dispositions not otherwise permitted hereunder; provided that (x) the consideration received for the applicable assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets shall be in an amount at least equal to the fair market value of the assets so exchanged thereof (as determined by the Borrower Representative in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange), (y) any cash or Cash Equivalents that are received by at least 75% of the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) purchase price for the applicable assets shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior paid to the completion of such exchange, the Parent or a Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iiiapplicable) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and (z) the Net Proceeds of any such Disposition to the extent constituting an Asset Sale are applied in accordance with Section 2.06(d)(ii) to the extent required by such Section and within the time periods set forth therein;
(Asset Salesn) sale and lease back transactions in respect of any property acquired after the Closing Date, and consummated within 365 days after the acquisition of such Asset Sale property;
(o) Dispositions of Investments in joint ventures to the extent required by, or series made pursuant to (i) customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements or (ii) any other arrangement permitted pursuant to Section 7.07(p);
(p) Dispositions of related Asset Salesproperty 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;
(q) Dispositions required by, or made to comply with any order of, any Governmental Authority or pursuant to any applicable Requirement of Law;
(r) other Dispositions for consideration not in excess of $5,000,000; and
(s) the Disposition of AAC and its subsidiaries pursuant to the Aurora Transaction Agreements; provided that the Net Proceeds from any Disposition pursuant to this Section 7.03(s) are applied in accordance with Section 2.06(d)(ii) within the time limit set forth therein. Upon consummation of a sale, transfer or reinvestedother Disposition permitted under this Section 7.03, any Liens created under the Security Documents in respect of the assets Disposed of shall be automatically released and the Agent shall (to the extent applicable) deliver to the Borrower Representative, upon the Borrower Representative’s request and at the Borrower Representative’s expense in accordance with Section 11.04, such documentation as necessary to evidence the release of the Agent’s security interests, if any, in the assets being Disposed of, including amendments or terminations of Uniform Commercial Code or UK Companies House financing statements, if any, the return of stock certificates, if any, and the release of any Subsidiary being Disposed of in its entirety from all of its obligations, if any, under the Loan Documents; provided that the Borrower Representative shall have provided to the Agent such certificates evidencing compliance with the Loan Documents as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseAgent shall reasonably request.
Appears in 1 contract
Disposition of Assets. The Except with the prior written consent of the Agent and Majority Banks in the event any Asset Sale or other disposition of assets constitutes an amount less than or equal to 20% of the total assets of the Borrower shall on a consolidated basis and with the prior written consent of Agent and all of the Banks in the event any Asset Sale of other disposition of assets constitutes an amount greater than 20% of the total assets of the Borrower on a consolidated basis, the Borrower will not, and shall will not permit any of its Restricted Subsidiaries to, make become a party to or agree to or effect any Asset Sale except:
or other disposition of assets, other than (ia) Asset Sales the sale of inventory, the sale of lease agreements, the licensing of intellectual property and the disposition of obsolete assets, in each case in the ordinary course of business of assets held for resale in consistent with past practices; and (b) the ordinary course of business or the trade in or replacement sale of assets in the ordinary course of business;
arms-length transactions for fair and reasonable value, provided that, with respect to this clause (ii) the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assetsb), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (Ai) no Default or Event of Default shall have occurred and be continuing at the time of such sale and no Default or would result therefrom, Event of Default will exist after giving effect to such Asset Sale; (Bii) at least seventy-seventy five percent (75%) of the consideration purchase price for such assets is received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and the Net Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of Sale Proceeds from such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); sales are applied as provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business§4.2 hereof, (Ciii) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold any promissory note or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined instrument received by the Borrower or any of its Subsidiaries in good faith, without giving effect to any connection with such Asset Sales and, if requested sale is an Investment permitted by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded§10.3 hereof, and (D) the Net Proceeds (Asset Sales) of Borrower or such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvestedSubsidiary, as the case may be, pursuant has delivered such promissory note or other instrument to Section 2.6(b)(iii)the Agent to be held in pledge for the benefit of itself and the Banks in accordance with the terms of the Loan Documents; provided that (iv) the aggregate value of all assets sold in the case of any Asset Sale pursuant to a Spectrum Tender that results is not more than $100,000 in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, any fiscal year; (v) the Borrower shall prepay have delivered to the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% Agent on the date of such Net Proceeds (Asset Sales), or if less, sale a certificate signed by an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow authorized officer of the Borrower and its Restricted Subsidiaries, in each case determined for evidence satisfactory to the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection Agent showing compliance with the compromise or collection thereof;
provisions of clauses (vii) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
through (vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%iv) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause§10.5.2.
Appears in 1 contract
Disposition of Assets. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, make any Asset Sale except:
Disposition except (a) Dispositions of Mortgage Loans in the ordinary course of business, (b) Dispositions of assets other than Mortgage Loans or Servicing Rights (i) Asset Sales for fair value and, in the case of a Disposition with a purchase price in excess of [***], the consideration received consists of no less than [***] in cash and Cash Equivalents, (ii) the net cash proceeds received from such Disposition, together with the net cash proceeds of all other assets Disposed of pursuant to this clause (b) since the Closing Date, does not exceed (individually or in the aggregate) [***] and (iii) the net cash proceeds from such Disposition are applied to prepay Revolving Credit Borrowings to the extent (if any) required by Section 2.6(c)), (c) other Dispositions not to exceed [***] in the aggregate in any fiscal year, (d) Dispositions of servicing rights (including Pledged Servicing Rights) in the ordinary course of business, consistent with past practice and subject to the terms and conditions of the Xxxxxx Xxx Contract, provided that the net cash proceeds from such Disposition are applied to prepay Revolving Credit Borrowings to the extent required by Section 2.6(c)), (e) Dispositions of obsolete, damaged, worn out or surplus personal property, in each case, Disposed of in the ordinary course of its business, (f) 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, (g) Dispositions of cash and Cash Equivalents, (h) Dispositions of accounts receivable in connection with their collection or compromise in the ordinary course of business, (i) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets in the ordinary course of business;
(ii) the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries to third Persons in the ordinary course of business that do not materially interfere in any material respect with the business of the Borrower or any of and its Restricted Subsidiaries;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (Bj) transfers of property to the forfeiture or surrender of assets determined by extent subject to casualty events; provided that as a condition to all such Dispositions, Borrower must always remain in compliance with the Borrower Borrowing Base and Borrower’s financial covenants set forth in good faith Article 9, and must apply proceeds from any Disposition to (1) no longer be necessary in the conduct of its business in the ordinary course pay down Revolving Credit Borrowings if and (2) be as required to remain in future compliance with Applicable Laws Section 2.6(c). To the extent any Collateral is Disposed of as expressly permitted by this Section 8.10, such Collateral shall be sold free and final orders clear of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition created by the Loan Documents, and Administrative Agent shall take such action reasonably requested (including authorizing the filing of UCC-3 financing statements) by Borrower or any of its Restricted Subsidiaries of assets in order to effect the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseforegoing.
Appears in 1 contract
Disposition of Assets. The Borrower Company shall not, and shall not --------------------- suffer or permit any of its Restricted Subsidiaries Semiconductor Operations Subsidiary to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Asset Sale exceptproperty (including accounts and notes receivable, with or without recourse) (together, "Dispositions") or ------------ enter into any agreement to do any of the foregoing, except for:
(ia) Asset Sales Dispositions by a Semiconductor Operations Subsidiary of all or substantially all of its assets (upon voluntary dissolution, liquidation or otherwise) to the Company or any other Person, provided that if such a -------- Disposition is to a Person other than the Company or another Semiconductor Operations Subsidiary (or a Wholly-Owned Subsidiary which, immediately following such dissolution or liquidation, will become a Semiconductor Operations Subsidiary), such Disposition would be a Distribution permitted under Section 7.09(d);
(b) Dispositions of assets in the ordinary course of business (the parties hereby agreeing that Dispositions of assets held for resale inventory, or used, worn-out or surplus equipment, or equipment pursuant to Permitted Sale-Leaseback Transactions shall be considered to be Dispositions in the ordinary course of business business);
(c) Dispositions of immaterial ($1,000,000 or the trade in or replacement of less individually) assets in outside the ordinary course of business;
(iid) the concurrent exchange Dispositions of a television broadcast station or of long-term Station operating assets or cash material (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3$1,000,000 individually) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in outside the ordinary course of business in connection (other than accounts and notes receivable); provided that, except to the extent Commitment reductions are -------- effected and any related prepayments made as contemplated by the last paragraph of this Section 7.03, the aggregate Net Proceeds of all material assets so sold, together with the compromise or collection thereofaggregate Net Proceeds of any material (greater than $1,000,000 individually) assets disposed of pursuant to sale- leaseback transactions which do not constitute Permitted Sale-Leaseback Transactions since the Original Closing Date, shall not exceed $200,000,000 (the disposition of assets acquired in the TI Acquisition being excluded from the foregoing calculation);
(vie) leasesSubject to Subsection 7.03(f), subleasesdispositions of non-semiconductor operations assets, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries to third Persons in the ordinary course of business that do not interfere in any material respect with the business including dispositions of the Borrower or any capital stock of its Restricted Subsidiaries that are not Semiconductor Operations Subsidiaries;
(viif) Disposition of shares of Micron Electronics, Inc. stock, provided -------- that, except to the disposition extent Commitment reductions are effected and any related prepayments made as contemplated by the last paragraph of any Hedge Agreement;this Section 7.03, the aggregate Net Proceeds therefrom since the Original Closing Date shall not exceed $200,000,000; and
(viiig) the transfer Disposition of assets to acquired in the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) TI Acquisition. Notwithstanding the transfer by any Credit Party of its assets to any other Credit Partyforegoing, (Bi) subject to clause (ii) below, the transfer by any Non-Guarantor Subsidiary aggregate amount of its assets to any Credit Party Dispositions under subsections (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transferd) and (Cf) since the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable Original Closing Date shall not exceed $300,000,000 in the business aggregate; and (ii) Dispositions described in subsections (d) and (f) which involve an amount exceeding the maximum amount permitted under this Section 7.03 will be permitted hereunder if the Commitments are reduced as contemplated by Section 2.05 and, if required by Section 2.06 as a result of such Commitment reductions, the Net Proceeds are paid over to the Agent for the account of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders Banks as a prepayment of the FCC;
(xii) Asset Sales Loans in connection accordance with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause2.06.
Appears in 1 contract
Disposition of Assets. The Borrower Borrowers shall not, and shall not permit any of its the Restricted Subsidiaries to, make at any Asset Sale except:
time sell, lease, abandon, or otherwise dispose of any assets (i) Asset Sales in the ordinary course other than assets disposed of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets in the ordinary course of business;
) without the prior written consent of the Majority Lenders; provided, however, that the prior written consent of the Lenders shall not be required for (i) the transfer of assets (including cash or cash equivalents) among the Borrowers and the Restricted Subsidiaries (excluding Subsidiaries of such Persons described in clause (b) of the definition of “Subsidiary”) or the transfer of assets (including cash or cash equivalents) between or among Restricted Subsidiaries (excluding Subsidiaries of such Persons described in clause (b) of the definition of “Subsidiary”) or (ii) the concurrent exchange disposition of a television broadcast station or assets (A) in any quarter that contribute, in the aggregate, together with all other assets disposed of long-term Station operating assets or cash during such quarter less than fifteen percent (including the Capital Stock 15%) of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Annualized Operating Cash Equivalents or Station operating assets at least equal to the fair market value Flow of the Borrowers and the Restricted Subsidiaries as of the calendar quarter end immediately preceding such disposition and (B) after April 1, 2004, that contribute, in the aggregate, together with all other assets so exchanged as determined by disposed of since April 1, 2004, Operating Cash Flow (Towers) and Operating Cash Flow (Other Business) of the Borrower in good faith; provided that (v) no Default or Event Borrowers and the Restricted Subsidiaries for the period from April 1, 2004 through the end of Default then exists or would result therefromthe calendar quarter immediately preceding such disposition, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirtyless than twenty-five percent (3525%) of the aggregate consideration for such asset exchange, total Operating Cash Flow (xTowers) the aggregate amount of all cash and Operating Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent Flow (35%Other Business) of the aggregate amount paid or transferred by Borrowers and the Borrower or any of its Restricted Subsidiaries in connection with for the period from April 1, 2004 through the end of the calendar quarter immediately preceding such asset exchangedisposition; provided, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii)further, and (z) at least five (5) Business Days prior to the completion of such exchangehowever, the Borrower shall provide to the Administrative Agent (that, in each case in form and substance reasonably satisfactory to the Administrative Agent):
under clause (Aii) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion)hereof, a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would and none shall be caused by such exchange; and
(C) such other additional financial information to occur as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including a result thereof. Upon any Asset Sale pursuant to sale or disposition of a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion)permitted hereunder, the Administrative Agent shall have receivedand the Lenders shall, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into Borrowers’ expense, take such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of actions as the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable Borrowers reasonably request to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any cause such Restricted Subsidiary thereof of accounts receivable arising in to be released from its obligations under the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries Loan Documents 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition which it is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clausea party.”
Appears in 1 contract
Disposition of Assets. The Borrower shall will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, make Dispose of any Asset Sale Property except:
(ia) Asset Sales in the ordinary course sale of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets Hydrocarbons in the ordinary course of business;
(iib) the concurrent exchange Disposition of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash equipment and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising Property in the ordinary course of business in connection with the compromise business, that is obsolete or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable necessary in the business of the Borrower or any of its Subsidiaries or that is being replaced by equipment of comparable value and utility;
(c) Liens permitted by Section 6.03, Investments permitted by Section 6.07 and Restricted Subsidiaries Payments permitted by Section 6.09;
(d) Dispositions of cash and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business Cash Equivalents in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCCbusiness;
(xiie) Asset Sales any Credit Party may Dispose of its Property to another Credit Party;
(f) sales or discounts of overdue accounts receivable in the ordinary course of business, in connection with insurance the compromise or collection thereof, and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with not in connection therewithwith any financing transaction;
(xiiig) other Dispositions of Oil and Gas Property (other than Hedge Modifications or Production Payments), provided that:
(i) the consideration received shall be at least equal to the extent constituting Asset Sales, mergers, consolidations Fair Market Value of the Oil and liquidations permitted Gas Property subject to such Disposition (and with respect to Dispositions involving consideration in excess of $2,000,000 individually and $10,000,000 in the aggregate for all Dispositions pursuant to this Section 7.4(b6.05, the Borrower shall deliver to the Administrative Agent a certificate of a Responsible Officer certifying that such Disposition was for Fair Market Value), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xivii) 100% of the sale or other disposition consideration received by the Borrower or any Subsidiary in respect of its Restricted Subsidiaries such Disposition is cash or Cash Equivalents; and
(iii) the Net Cash Proceeds of assets such Disposition are used to prepay the Loans to the extent required pursuant to Section 2.07(a).
(h) substantially contemporaneous (and in any event occurring within 30 days of each other) Dispositions of Oil and Gas Properties as to which no Proved Reserves are attributable in exchange for other Oil and Gas Properties provided that such sale (i) the Fair Market Value of the Oil and Gas Properties exchanged by the Borrower or its Subsidiary (together with any cash) is reasonably equivalent to the Fair Market Value of the Oil and Gas Properties (together with any cash) to be received by the Borrower or its Subsidiary, and (ii) any cash received must be applied in accordance with Section 2.07;
(i) Dispositions of seismic, geologic or other disposition is required by Applicable Laws or final order data and license rights in the ordinary course of the FCCbusiness;
(j) Hedge Modifications; provided that at least seventy-five percent (75%) of the consideration received in each for such Asset Sale Hedge Modification is at least equal to Fair Market Value;
(k) a DrillCo Required Disposition so long as the Administrative Agent (or series any designee thereof) has received within 30 days of related Asset Sales) the date on which such DrillCo Required Disposition is effected, a duly executed Mortgage granting an Acceptable Security Interest in the applicable Credit Party’s interest in the DrillCo Joint Well that is the subject of such DrillCo Required Disposition;
(l) Dispositions pursuant to a decision not to participate in an Oklahoma Corporation Commission Force Pooling Order or any relinquishment of any interests in any oil and gas leases pursuant to a non-consent provision of a standard form of cash joint operating agreement;
(m) Any farm-out, drillco or Cash Equivalents similar arrangement with respect to any Non-Core Assets;
(n) Dispositions of interests in any Subject Lease pursuant to the exercise by a third party of its rights to acquire an interest therein, to the extent and pursuant to the Net Proceeds (Asset Sales) terms of such Asset Sale right to acquire an interest therein, to the extent and pursuant to the terms of such right as in effect on the date hereof, which Disposition is effected on or before the 90th day after such Subject Lease is acquired by a Credit Party (or series of related Asset Sales) are applied or reinvestedor, as in the case may beof Subject Leases held on the Effective Date, the 90th day after the Effective Date); and
(o) Other Dispositions and sales of Properties (including any midstream assets or gathering systems) not otherwise permitted pursuant to this Section 2.6(b)(iii6.05 having a Fair Market Value not to exceed $5,000,000 in the aggregate for all Dispositions and sales of Properties pursuant to this Section 6.05(o) (it being understood and agreed that nothing in for the term of this clauseAgreement.
Appears in 1 contract
Disposition of Assets. The Borrower Borrowers shall not, and shall not permit any of its the Restricted Subsidiaries to, make at any Asset Sale except:
time sell, lease, abandon, or otherwise dispose of any assets (i) Asset Sales in the ordinary course other than assets disposed of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets in the ordinary course of business;
), except for (i) the transfer of assets (including cash or cash equivalents) among the Credit Parties (excluding Subsidiaries of such Persons described in clause (b) of the definition of “Subsidiary” if the requirements of clause (a) thereof are not otherwise met) or the transfer of assets (including cash or cash equivalents) between or among Restricted Subsidiaries (excluding Subsidiaries of such Persons described in clause (b) of the definition of “Subsidiary” if the requirements of clause (a) thereof are not otherwise met) or (ii) the concurrent exchange disposition of a television broadcast station or of long-term Station operating assets or cash (including for fair market value; provided that the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the aggregate fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and by the Credit Parties during any fiscal year (including all other Asset Sales made assets disposed of pursuant to this Section 7.4(a)(iii7.8 hereof) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, Consolidated Total Assets as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow last day of the Borrower and its Restricted Subsidiariesimmediately preceding fiscal year; provided, however, that, in each case determined for the then applicable Reference Periodunder clause (ii) hereof, shall so long as no Default or Event of Default exists or will be attributable caused to Stations that are subject to Station Sharing Arrangements;
(v) the occur as a result thereof. Upon any sale or discount without recourse by the Borrower or any disposition of a Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transferhereunder, such Credit Party shall not pay more than an amount equal Restricted Subsidiary will be released from its obligations under the Loan Documents to which it is a party and the fair market value of such assets as determined in good faith Administrative Agent and the Lenders shall, at the time of Borrowers’ expense, take such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, actions as the case may be, pursuant Borrowers reasonably request to Section 2.6(b)(iii) (it being understood evidence and agreed that nothing in this clausegive effect to such release.
Appears in 1 contract
Disposition of Assets. The Borrower Company shall not, and shall not permit any of its Restricted Subsidiaries toto Dispose of (whether in one or a series of transactions) any property (including accounts and notes receivable with or without recourse and Capital Stock of any Restricted Subsidiary whether newly issued or otherwise), make any Asset Sale except:
(a) (i) Asset Sales Dispositions of inventory and equipment in the ordinary course of business and (ii) Dispositions of assets Cash Equivalents;
(b) the sale of equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment or the proceeds of such sale are reasonably promptly applied to the purchase price of such replacement equipment;
(c) Dispositions of Investments by any Insurance Subsidiary (other than any of its Investments in Restricted Subsidiaries engaged in insurance lines of business) and Dispositions by the Company of Investments permitted pursuant to Section 7.16, in each case, in the ordinary course of business consistent with past practices of the Company and its Restricted Subsidiaries taken as a whole and the investment policy approved by the board of directors of such Insurance Subsidiary or the Company, as the case may be;
(d) Dispositions (i) by the Company or any Restricted Subsidiary to the Company or any Restricted Subsidiary (other than any Excluded Subsidiary), (ii) by any Excluded Subsidiary to any other Excluded Subsidiary in the ordinary course of business and (iii) to Excluded Subsidiaries in an aggregate amount not to exceed $30,000,000;
(i) any Dispositions pursuant to a Reinsurance Agreement so long as such Disposition is entered into in the ordinary course of business for the purpose of managing insurance risk consistent with industry practice and (ii) any other Dispositions pursuant to a Reinsurance Agreement so long as the aggregate statutory profit and/or gains on insurance policy sales or other portfolio transfers resulting from all Dispositions described in this clause (ii) consummated after the Closing Date do not exceed $400,000,000 in the aggregate during the term of this Agreement or $150,000,000 in any Fiscal Year; provided that (x) the Net Proceeds therefrom are, unless required to be retained by any Insurance Subsidiary pursuant to regulatory restrictions, applied to prepay the Loans as provided in Section 2.09 and (y) any Net Proceeds therefrom that are required to be retained by any Insurance Subsidiary pursuant to regulatory restrictions are so retained by such Insurance Subsidiary;
(f) obsolete, surplus or worn out property disposed of by the Company or any of its Restricted Subsidiaries in the ordinary course of business and consistent with past practices of the Company and its Restricted Subsidiaries;
(g) transfers resulting from any casualty or condemnation of property or assets;
(h) licenses or sublicenses of intellectual property and general intangibles and licenses, leases or subleases of other property in the ordinary course of business and consistent with the past practices of the Company and its Restricted Subsidiaries and which do not materially interfere with the business of the Company and its Restricted Subsidiaries;
(i) Dispositions consisting of mergers, amalgamations and consolidations among the Company and its Restricted Subsidiaries, or of any liquidation, winding up or dissolution of any Restricted Subsidiary, in each case to the extent permitted by Section 7.07;
(j) Dispositions of shares of Capital Stock in order to qualify members of the board of directors or equivalent governing body of an Obligor or such other nominal shares required to be held for resale other than by the Company or such Obligor, as required by applicable law;
(k) the sale, discount, forgiveness or other compromise of notes or other accounts in the ordinary course of business or the trade in or replacement of assets in the ordinary course of businessconnection with collection thereof;
(l) issuances of Capital Stock (i) by the Company, (ii) by a directly or indirectly Wholly-Owned Subsidiary of the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal Company to the fair market value Company or to one or more Wholly-Owned Subsidiaries of the assets so exchanged Company or (iii) by a non-Wholly-Owned Subsidiary of the Company to the respective equity holders of such non-Wholly-Owned Subsidiary, on a pro rata basis;
(m) the sale and leaseback of the Company’s headquarters located in Carmel, Indiana, on fair and reasonable terms (as determined certified to the Agent in writing by a Responsible Officer of the Borrower Company);
(n) the Designated Asset Sale; and
(o) Dispositions not otherwise permitted hereunder (other than pursuant to Reinsurance Agreements, which shall be subject to the limitations in good faithclause (e) above); provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) Dispositions shall be applied pursuant to Section 2.6(b)(iii), and for fair market value (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case which determination must be supported by a fairness opinion in form and substance reasonably satisfactory to the Administrative Agent):
Agent from a nationally-recognized investment banking firm in connection with any Disposition or series of related Dispositions in any single Fiscal Year the aggregate consideration for which exceeds $125,000,000; provided that no fairness opinion is required in respect of any Disposition or series of related Dispositions made at any time when (Ai) a written notification of such exchange describing the assets Debt to be exchanged Total Capitalization Ratio is equal to or less than 20% and (ii) the proposed closing date Financial Strength Rating Condition is satisfied) and at least 75% of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is in connection therewith at least equal to the fair market value closing shall consist of the assets so exchangedcash, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 on a Pro Forma Basis after giving effect to such exchange Disposition, the Company and its Restricted Subsidiaries would be in compliance with all of the covenants contained in the Loan Documents (regardless of whether a Suspension Period is in effect at the time of such exchange) or including all financial and ratings covenants), (y) no such Disposition shall include the sale of any Capital Stock of any Restricted Subsidiary unless 100% of the Capital Stock of such Restricted Subsidiary owned by the Obligors is sold and (z) the Net Proceeds thereof shall be applied to prepay the Loans in accordance with Section 2.09. Upon consummation of a sale, transfer or other Disposition permitted under this Section 7.03, Liens created under the Security Documents in respect of the assets Disposed of shall be automatically released and the Agent shall (to the extent applicable) deliver to the Company, upon the Company’s request and at the Company’s expense, such documentation as necessary to evidence the release of the Agent’s security interests, if any, in the assets being Disposed of, including amendments or terminations of Uniform Commercial Code financing statements, if any, the return of stock certificates, if any, and the release of any Restricted Subsidiary being Disposed of in its entirety from all of its obligations, if any, under the Loan Documents; provided that the pro forma Leverage Ratio after giving effect Company shall have provided to the Agent such exchange shall not be greater than certificates evidencing compliance with the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information Loan Documents as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause.
Appears in 1 contract
Disposition of Assets. The Borrower shall notwill not sell, lease, assign, transfer, or otherwise dispose of any of its assets, and shall will not permit any Restricted Subsidiary to do so with any of its Restricted Subsidiaries toassets, make any Asset Sale except:
(ia) Asset Sales in the ordinary course sales, assignments, transfers, or other dispositions of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets inventory in the ordinary course of business,
(b) dispositions of unnecessary, obsolete or worn out equipment,
(c) factoring of accounts receivable of any of the Foreign Subsidiaries (other than accounts receivable included in the Borrowing Base) pursuant to factoring arrangements entered into in the ordinary course of their respective businesses,
(d) sales, assignments, transfers, or other dispositions of assets, the gross proceeds of which (exclusive of indemnities) do not exceed $1,000,000 for any particular sale or $2,000,000 in the aggregate for any fiscal year,
(e) the sale, lease, assignment, transfer or other disposition of the Nuova Red Diaper Line to any Foreign Subsidiary of the Borrower;
(iif) the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged long as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower time thereof and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 immediately after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) thereto no Default or Event of Default shall have occurred and or be continuing or would result therefrom, continuing:
(Bi) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary may sell, assign or transfer property and assets to the non-Affiliate owner(s) of such Borrower or another Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, upon fair and reasonable terms,
(Cii) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the monetary limitation of this contained in clause (Ciii) below, Borrower may sell, assign or transfer or lease property or assets (other than cash, cash equivalents and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (Cinventory) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);Domestic Restricted Subsidiary which is a Guarantor hereunder, and
(iviii) Asset Sales in the form of Station Sharing Arrangements; Borrower may sell, assign, transfer or lease property or assets (other than cash, cash equivalents and inventory) to any Foreign Restricted Subsidiary upon fair and reasonable terms, provided that (A) at least five (5) Business Days prior if the Borrower does not receive cash consideration in exchange for such assets or property, such transfer must be evidenced by an intercompany note pledged to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy for the benefit of any Shared Services Agreementthe Banks, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time aggregate book value of entering into all such Station Sharing Arrangement assets or property transferred pursuant to clause (ii) and after giving effect theretothis clause (iii) no more than ten percent during any fiscal year of Borrower does not exceed $5,000,000; and
(10%g) non-exclusive licenses of the Operating Cash Flow of the technology and other intellectual property rights by and among Borrower and its the Restricted Subsidiaries. The Agent is hereby authorized, in each case determined for on behalf of all Banks, to release the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse Liens held by the Agent on Collateral that Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction is permitted pursuant to this Section 7.4(b);
(ix) dispositions 10.7 to sell or otherwise dispose of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that event such Person does in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value fact sell or otherwise dispose of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseCollateral.
Appears in 1 contract
Samples: Credit Agreement (Drypers Corp)
Disposition of Assets. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, make any Asset Sale except:
(i) Asset Sales If, after the Agreement Date, the Borrower or any of the Designated Subsidiaries shall sell, transfer or otherwise dispose of (including, without limitation, by way of condemnation or casualty) any Assets with Net Cash Proceeds in excess of $10,000,000 in the ordinary course aggregate during the term of business this Agreement (other than (A) the sale of assets held for resale in obsolete equipment (other than Towers), (B) the ordinary course sale of business or the trade in or replacement of assets inventory in the ordinary course of business;
, (iiC) the concurrent exchange sale, transfer or other disposition of a television broadcast station Assets that are replaced by property of substantially equivalent value in the ordinary course of business, (D) the sale, transfer or other disposition of long-term Station operating assets any Equity Interests in any Unrestricted Subsidiary or cash Unrestricted Investment, (including E) the Capital Stock lease of a Person which owns long-term Station operating assets)space on Towers in the ordinary course of business, for which and (F) if consummated within one (1) year after the Agreement Date, the sale of the Broadcast Services Business) one hundred percent (100%) of the Net Cash Proceeds received by the Borrower or any Restricted such Designated Subsidiary receives cashfrom such Sales Transaction shall be applied, Cash Equivalents or Station operating assets at least equal to on the fair market value date of the assets so exchanged as determined receipt thereof by the Borrower or such Designated Subsidiary, to prepay the Loans as set forth in good faithSection 2.7(e) below; provided that (v) provided, however, that, at the Borrower's election, so long as no Default or Event of Default then exists or would result therefrombe caused thereby, (w) the aggregate amount up to $20,000,000 of all cash and such Net Cash Equivalents Proceeds received by the Borrower or any Restricted Designated Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid during any year may be used by the Borrower or any such Restricted Subsidiary to purchase or construct one or more Towers or otherwise to invest in capital assets, the aggregate Purchase Price of its Restricted Subsidiaries in connection with such asset exchange shall which does not exceed thirty-five percent such Net Cash Proceeds (35%) or the sum of the aggregate amount paid or transferred by such Net Cash Proceeds plus amounts otherwise available for Permitted Acquisitions), so long as the Borrower or any such Designated Subsidiary shall have (A) entered into a definitive contract for purchase or construction no later than six (6) months from the date of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash sale or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii)other disposition, and (zB) at least concluded such purchase or construction within twelve (12) months from the date of such sale or other disposition.
(ii) In the event the Borrower elects to exercise its right to reinvest Net Cash Proceeds under Section 2.7(b)(i), the Borrower shall so notify the Administrative Agent not less than five (5) Business Days prior to the completion proposed date of the closing of the sale or other disposition of Assets and shall, upon its or any Designated Subsidiary's receipt of any Net Cash Proceeds with respect to such sale or other disposition of Assets, remit such Net Cash Proceeds to the Administrative Agent to reduce the outstanding principal balance of the Revolving Loans (but not the Term Loans nor the amount of the Revolving Commitment). Any amount in excess of the then outstanding balance of the Revolving Loans may be retained by the Borrower. The Borrower shall consummate the Acquisition of the Towers or other capital assets not later than twelve (12) months after the date of the applicable Sales Transaction. To the extent that the Borrower shall not have consummated any such purchase as of twelve (12) months after the date of such exchangeSales Transaction (for whatever reason, including the occurrence of a Default or Event of Default hereunder), or the cash Purchase Price of such purchase shall be less than the Net Cash Proceeds of the applicable Sales Transaction, the Borrower shall provide to apply such Net Cash Proceeds, or the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification amount of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 Net Cash Proceeds remaining after giving effect to such exchange any purchases made during the twelve (regardless 12) month reinvestment period, to prepay the Loans as set forth in Section 2.7(e) below.
(iii) If the Borrower or the applicable Designated Subsidiary or Designated Subsidiaries shall sell, transfer or dispose of whether the Broadcast Services Business for Net Cash Proceeds of $100,000,000 or less in a Suspension Period single transaction or a series of related transactions which are consummated on or before the date which is in effect at one year after the time of such exchange) or (y) that Agreement Date, the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchangeBorrower may, and (3) certifying that so long as no Default or Event of Default then exists or would be caused by thereby, elect to reinvest such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration Net Cash Proceeds received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause
Appears in 1 contract
Disposition of Assets. The Borrower Lessee shall not, and shall not --------------------- suffer or permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, (x) issue any equity interests in the Lessee or any Subsidiary to any Person which is not the Lessee or a Subsidiary or (y) sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any property, including accounts and notes receivable, with or without recourse (each, an "Asset Sale Disposition"), or enter into any agreement to do any of the ----------------- foregoing, except:
(i) Asset Sales in the ordinary course dispositions of business of assets held for resale in the ordinary course of business inventory, or the trade in used, worn-out or replacement of assets surplus equipment, all in the ordinary course of business;
(ii) the concurrent exchange sale of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the proceeds of such sale are reasonably promptly applied to the purchase price of such replacement equipment; and
(iii) dispositions not otherwise permitted hereunder which are made for fair market value of the assets so exchanged as determined by the Borrower in good faithvalue; provided provided, that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange-------- any disposition, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing exist or would shall result therefromfrom such disposition, (B) at least seventy-five percent (75%) % of the consideration received in each aggregate sales price from such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, dispositions shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising paid in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leasescash, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary aggregate value of its all assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined so sold by the Borrower in good faith to Lessee and its Subsidiaries after the date hereof, together, shall not (1) no longer represent more than 5% of the total assets of the Lessee and its Subsidiaries, as would be necessary shown in the conduct consolidated financial statements of the Lessee and its business in Subsidiaries as at the ordinary course and end of the fiscal quarter next preceding the date on which such determination is made, or (2) be required to remain in future compliance with Applicable Laws and final orders responsible for more than 5% of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order consolidated net income of the FCC; provided that at least seventyLessee and its Subsidiaries for the 12-five percent (75%) month period ending as of the consideration received in each such Asset Sale (or series end of related Asset Sales) is in the form fiscal quarter next preceding the date of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clausedetermination.
Appears in 1 contract
Samples: Master Agreement (Jones Financial Companies Lp LLP)
Disposition of Assets. The Borrower No Loan Party shall, nor shall not, and shall not it permit any of its Restricted Subsidiaries to, directly or indirectly make any Asset Sale Disposition, except:
(ia) Asset Sales in the ordinary course Dispositions of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets inventory in the ordinary course of business;
(iib) the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets)Dispositions, for which the Borrower fair value, of worn-out or any Restricted Subsidiary receives cash, Cash Equivalents obsolete equipment or Station operating other assets at least equal not necessary or otherwise useful to the fair market value conduct of the assets so exchanged as determined by the Borrower in good faith; provided that Loan Parties’ business;
(vc) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or Dispositions from any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower Loan Party or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the to Borrower or any other Loan Party;
(d) Dispositions of its Restricted Subsidiaries in connection with such asset exchangePermitted Investments, (y) any cash or and Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant transaction not prohibited under this Agreement;
(e) the write-off, discount, sale or other Disposition of defaulted or past-due receivables and similar obligations in the ordinary course of business and not undertaken as part of an accounts receivable financing transaction;
(f) non-exclusive licenses and sublicenses of intellectual property rights in the ordinary course of business not interfering in any material respect with the ordinary conduct of or materially detracting from the value of the business of the Loan Parties and their Restricted Subsidiaries;
(g) the abandonment or Disposition of intellectual property rights that are no longer used or useful in the business of the Loan Parties and their Restricted Subsidiaries;
(h) to this the extent constituting Dispositions, Permitted Liens permitted under Section 7.4(a)(ii7.2, Restricted Payments permitted under Section 7.4 or investments permitted under Section 7.5;
(i) shall be applied pursuant the disposition, termination or unwinding of any Hedge Agreement;
(j) (i) termination of leases in the ordinary course of business and (ii) the expiration of any option agreement in respect of real or personal property;
(k) Dispositions of (i) DBR Solar and/or Pecos Renewables solely to Section 2.6(b)(iii)the extent that Investments made into such entities following the Closing Date do not exceed $2,500,000 in the aggregate, and (zii) at least five (5) Business Days prior to the completion of such exchangeUnrestricted Subsidiaries, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property Immaterial Subsidiaries or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchangeJoint Ventures; and
(Cl) such other additional financial information as the Administrative Agent shall reasonably request;Dispositions not otherwise permitted under this Section 7.8; provided that:
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (Ai) no Default or Event of Default shall have occurred and be continuing or would result therefrom, both before and after giving effect thereto;
(Bii) at least seventy-five percent (75%) 100% of the consideration received in each respect to any such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash EquivalentsDisposition shall be cash; provided that cash any Debt of a Loan Party that is assumed, incurred or guaranteed by the purchaser in connection with assets to be Disposed and Cash Equivalents as to which the relevant Loan Party shall include be wholly released from or indemnified with respect to any Designated Non-Cash Consideration having a remaining obligation shall be considered cash;
(iii) the consideration received shall be equal to or greater than the fair market value at thereof (as reasonably determined by a Responsible Officer of Borrower and if requested by Administrative Agent, Xxxxxxxx shall deliver a certificate of a Responsible Officer of Borrower certifying to that effect); and
(iv) the time received that, when taken together with aggregate fair market value (as reasonably determined by Borrower in good faith) of all other Designated NonProperty Disposed of pursuant to this clause (j) in any twelve-Cash Consideration previously received and then outstanding, does month period shall not exceed the greater of (x) $75,000,000 5,000,000 and (y) one percent (1.0%) 10% of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow EBITDA for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference recently ended Test Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage RatioDisposition permitted under clause (i) or (l) of this Section 7.8, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay make the mandatory prepayment of Term Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted extent required pursuant to Section 7.4(b2.8(d);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause. CREDIT AGREEMENT – Page 119
Appears in 1 contract
Samples: Credit Agreement (LandBridge Co LLC)
Disposition of Assets. The Borrower No Loan Party shall not, and shall not permit any of its Restricted Subsidiaries to, make any Asset Sale except:Disposition, other than
(a) an Asset Disposition of Inventory in the Ordinary Course of Business;
(b) an Asset Disposition of Equipment and other Property that, in the aggregate during any twelve (12) month period, has a fair market value of $4,000,000 or less;
(c) an Asset Disposition of Inventory or other Property that is obsolete, surplus, unmerchantable, worn-out or otherwise unsalable in the Ordinary Course of Business;
(d) an Asset Disposition that is a termination of a lease of real or personal Property that is not necessary for the Ordinary Course of Business, could not reasonably be expected to have a Material Adverse Effect and does not result from a Loan Party’s default;
(e) an Asset Disposition that is approved in writing by Agent and Required Lenders as a “Permitted Asset Disposition”;
(f) dispositions of Property (including but not limited to Intellectual Property rights) that is no longer necessary, used or useful for such Loan Party’s business as conducted prior thereto or thereafter contemplated;
(g) 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 reasonably promptly applied to the purchase price of such replacement property;
(h) a disposition of Equipment under Section 8.5.2;
(i) Asset Sales in the ordinary course a transfer of business Property by a Subsidiary of assets held for resale in the ordinary course of business or the trade in or replacement of assets in the ordinary course of businessany Loan Party to a Loan Party;
(iij) the concurrent exchange dispositions of a television broadcast station or of longProperty between and among Loan Parties;
(k) dispositions permitted by Section 10.2.5, 10.2.6 and/or 10.2.10;
(l) sale-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary leaseback transactions in connection with such asset exchanges shall financing of equipment or other property used in the Ordinary Course of Business of a Loan Party that is not exceed thirtyprohibited under this Agreement;
(m) licensing, on a non-five percent exclusive basis, of Intellectual Property in the Ordinary Course of Business;
(35%n) voluntary termination by a Loan Party of the aggregate consideration for such asset exchange, a Hedging Agreement; and
(xo) the aggregate amount transfers of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form Ordinary Course of cash or Cash Equivalents; Business provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does transferor is not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauserendered insolvent.
Appears in 1 contract
Samples: Loan and Security Agreement (Hudson Highland Group Inc)
Disposition of Assets. The Borrower shall notSell or otherwise dispose of any assets (including, and shall not permit without limitation, the capital stock of any Subsidiary of its Restricted Subsidiaries to, make any Asset Sale except:
the Borrowers) except for (i) Asset Sales in the ordinary course sales of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets Inventory in the ordinary course of business;
, (ii) sales of scrap and obsolete Inventory in the concurrent exchange ordinary course of a television broadcast station or business, (iii) sales of long-term Station operating the surplus real estate assets or cash of the Borrowers and the Foreign Subsidiaries set forth on Schedule 6.11, (including iv) sales of other surplus assets of the Capital Stock of a Person which owns long-term Station operating assetsBorrowers set forth on Schedule 6.11(a), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) sales of other surplus assets no Default or Event of Default then exists or would result therefrom, (w) longer used in the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges Borrowers’ business operations for which total consideration shall not exceed thirty-five percent (35%) of $25,000,000 in the aggregate consideration for such asset exchangeduring any period of twelve (12) consecutive months, (vi) sales of accounts receivable by Non-Debtor Foreign Subsidiaries pursuant to Factoring Arrangements and receivables securitizations so long as on any date the sum of (x) the aggregate amount (without duplication) of all cash (A) available commitments in effect on such date under Factoring Arrangements and Cash Equivalents paid receivables securitizations and (B) Accounts that have been disposed of pursuant to Factoring Arrangements and receivables securitizations and that are outstanding as of the last day of the calendar month most recently ended on or prior to such date and (y) Indebtedness of Non-Debtor Foreign Subsidiaries incurred pursuant to Section 6.03(vii) shall not exceed $400,000,000, (vii) transfers of accounts receivable and related rights by the F-M Canada to any Borrower, (viii) transfers of assets by any Borrower or any of its Restricted Domestic Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) to any Affiliate of the Borrowers incorporated or organized under the laws of a jurisdiction outside of the United States for total consideration not to exceed $14,000,000 in the aggregate amount paid or transferred during the term of this Agreement, (ix) sales not permitted by the Borrower or any of its Restricted Subsidiaries the foregoing clauses for total consideration not to exceed $30,000,000 in connection with such asset exchangethe aggregate during the term of this Agreement, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) involuntary dispositions on account of the consideration received loss of or damage to assets resulting in each such Asset Sale (payments of insurance proceeds or series of related Asset Sales) is in involuntary dispositions arising from the form of cash taking by condemnation or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer eminent domain of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions resulting in awards of Investments in cash compensation and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale dissolution of obsoleteFederal-Mogul Limited, worn-out or surplus assets no longer used or usable in the business a Cayman Islands company, and Productos de Frenos Automotrices de Calidad S.A. de C.V., a Mexican company, each of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition which is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clausea dormant Subsidiary.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Federal Mogul Corp)
Disposition of Assets. The Borrower Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Asset Sale property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except:
(ia) Asset Sales in the ordinary course dispositions of business of assets held for resale in the ordinary course of business Inventory, or the trade in worn-out or replacement of assets surplus equipment, all in the ordinary course of business;
(iib) the concurrent exchange sale of equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the proceeds of such sale are reasonably promptly applied to the purchase price of such replacement equipment, unless such equipment is not needed in the Company's or such Subsidiary's business;
(c) transfers of Accounts Receivable under a television broadcast station or of long-term Station operating assets or cash Permitted Receivables Facility;
(d) dispositions not otherwise permitted hereunder (including the disposition of all of the Capital Stock of a Person any operating Subsidiary by sale of stock or by merger of such Subsidiary with or into another Person, but excluding any Sale/Leaseback Transaction) which owns longare made for fair market value if the fair market value of all assets so disposed of by the Company and its Subsidiaries under this clause (d) since the Restatement Date does not exceed $*** in the aggregate; provided that (i) at the time of any disposition, no Event of Default or Unmatured Event of Default shall exist or will result from such disposition, (ii) at least 75% of the consideration received by the Company or such Subsidiary from such disposition is in cash or Cash Equivalent Investments and (iii) the proceeds thereof are applied as provided in subsection 2.8(a);
(e) mergers expressly permitted by clauses (i) and (ii) of Section 8.3 or transfers by any Wholly-term Station operating assets), for which Owned Subsidiary of the Borrower Company of its assets upon its liquidation to the Company or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to of its other Wholly-Owned Subsidiaries;
(f) dispositions (including by means of a Sale/Leaseback Transaction) of Assets Held for Sale for consideration not less than the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchangedisposed of;
(Bg) at the request dispositions of the Administrative Agent assets for not less than fair market value in Sale/Leaseback Transactions permitted under Section 8.18 (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying provided that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the aggregate fair market value of the assets so exchanged, all property sold pursuant to this clause (2g) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall may not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchangeexceed $***); and
(Ch) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event dispositions of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration assets having a an aggregate fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) exceeding $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clausefiscal year.
Appears in 1 contract
Disposition of Assets. The Borrower shall notConvey, and shall not permit sell, lease, assign, transfer or otherwise dispose of any of its Restricted Subsidiaries toproperty, make any Asset Sale except:
business or assets (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, except (i) Asset Sales in the ordinary course obsolete or worn out property disposed of business of assets held for resale in the ordinary course of business or property that is no longer useful in the trade conduct of the Borrowers' businesses disposed of in the ordinary course of business; (ii) the sale, transfer or replacement exchange of inventory in the ordinary course of business; (iii) transfers resulting from any casualty or condemnation of property or assets; (iv) with the authority of the Bankruptcy Court, if required, after application therefor, any sale or other transfer of any property or assets constituting fixed assets in an arm's-length transaction, at fair market value in which, in the case of any such property or assets that are sold for consideration in excess of $5,000,000, at least 75% of such consideration therefor received by the Credit Party is in the form of cash (any such sale or transfer made pursuant to this clause (iv), an "Asset Disposition"); provided that the Net Proceeds of the sales and transfers made pursuant to this clause (iv) in the aggregate shall not exceed $50,000,000 unless the Net Proceeds are applied in accordance with the proviso in Section 2.13(d), (v) intercompany sales or transfers of assets made in the ordinary course of business; (vi) licenses or sublicenses of intellectual property and general intangibles and licenses, leases or subleases of other property in the ordinary course of business and which do not materially interfere with the business of the Borrowers and their respective Subsidiaries; (vii) any consignment arrangements or similar arrangements for the sale of assets in the ordinary course of business;
; (ii) the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(vviii) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of overdue accounts receivable arising in the ordinary course of business business, but only in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions with the authority of Investments the Bankruptcy Court, if required, after application therefor, any sale or other transfer in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Nonan arm's-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the length transaction at fair market value of such any tangible property or assets as determined related to or used in good faith connection with operations that have been discontinued or, with the Bankruptcy Court's approval, are to be discontinued for consideration in an amount not to exceed $500,000 in the aggregate, (x) with the authority of the Bankruptcy Court, if required, after application therefor, any assignment or other transfer in an arm's-length transaction at fair market value of any intangible property or assets (including, without limitation, contract rights) related to or used in connection with operations that have been discontinued or, with the time Bankruptcy Court's approval, are to be discontinued, which assignment or transfer shall not materially interfere with the businesses of such transfer) the Borrowers and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
their respective Subsidiaries, and (xi) (A) with the sale of obsolete, worn-out or surplus assets no longer used or usable in the business authority of the Borrower or any of its Restricted Subsidiaries and (B) Bankruptcy Court, if required, after application therefor, the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseasset sales set forth on Schedule 6.11.
Appears in 1 contract
Samples: Credit, Guarantee and Security Agreement (Gentek Inc)
Disposition of Assets. The (i) If, after the Agreement Date, the Borrower shall not, and shall not permit or any of its Restricted Subsidiaries toshall sell, make transfer or otherwise dispose of (including, without limitation, by way of condemnation or casualty), in the aggregate during the term of this Agreement, any Asset Sale except:
Assets with Net Proceeds in excess of $5,000,000 (other than (i) Asset Sales in the ordinary course sale of business of assets held for resale in the ordinary course of business obsolete equipment (other than Towers) and inventory or the trade in sale, transfer or replacement other disposition of assets Assets that are replaced by property of substantially equivalent kind and value in the ordinary course of business;
, and (ii) the concurrent exchange lease of a television broadcast station or space on Towers in the ordinary course of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assetsbusiness), for which one hundred percent (100%) of the Net Proceeds received by the Borrower or any Restricted such Subsidiary receives cashfrom such Sales Transaction shall be applied, Cash Equivalents or Station operating assets at least equal to on the fair market value date of the assets so exchanged as determined receipt thereof by the Borrower or such Subsidiary, to prepay the Senior Loans as set forth in good faithSection 2.7(e) below; provided that (v) provided, however, that, at the Borrower's election, so long as no Default or Event of Default then exists or would result therefrombe caused thereby, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received Net Proceeds may be used by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(iipurchase or construct one or more Towers, the aggregate Purchase Price of which does not exceed such Net Proceeds (or the sum of such Net Proceeds plus Advances otherwise available for Permitted Acquisitions), so long as the Borrower or such Subsidiary shall have (A) shall be applied pursuant to Section 2.6(b)(iii)entered into a definitive contract for purchase or construction within six (6) months from the date of such sale or other disposition, and (zB) at least concluded such purchase or construction within twelve (12) months from the date of such sale or other disposition.
(ii) In the event the Borrower elects to exercise its right to reinvest Net Proceeds under Section 2.7(b)(i), the Borrower shall so notify the Administrative Agent not less than five (5) Business Days prior to the completion proposed date of the closing of the sale or other disposition and shall, upon its or any Subsidiary's receipt of any Net Proceeds with respect to such exchangesale or other disposition, the Borrower shall provide remit such Net Proceeds to the Administrative Agent to reduce the outstanding principal balance of the Revolving Loans (but not the Term Loans nor the amount of the Revolving Loan Commitment). Any amount in each case excess of the then outstanding balance of the Revolving Loans shall be held in trust in an interest-bearing account with the Administrative Agent or an Affiliate thereof (the "Net Proceeds Trust") for the benefit of the Borrower, to be applied to the ultimate purchase of the Towers, as hereinafter provided. The Borrower shall consummate the Acquisition of the Towers not later than twelve (12) months after the date of the applicable sale or other disposition. To the extent that the Borrower shall not have consummated any such purchase as of twelve (12) months after the date of such sale or other disposition (for whatever reason, including the occurrence of a Default or Event of Default hereunder), or the cash Purchase Price of such purchase shall be less than the Net Proceeds of the applicable sale or other disposition, any funds held in the Net Proceeds Trust relating to such sale shall be applied in the manner set forth in Section 2.7(e).
(iii) Amounts in any Net Proceeds Trust shall also be subject to a valid and perfected first priority Lien in favor of the Collateral Agent (for the benefit of the Senior Credit Parties to secure the Senior Obligations), pursuant to a deposit pledge agreement or other security agreement in form and substance reasonably satisfactory to the Administrative Collateral Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause.
Appears in 1 contract
Disposition of Assets. The Borrower shall notMake any Disposition, and shall not permit any of its Restricted Subsidiaries to, make any Asset Sale exceptexcept the following:
(ia) Asset Sales in the ordinary course Permitted Transfers;
(b) Dispositions of business of assets held for resale in the ordinary course of business obsolete or the trade in worn out Property, whether now owned or replacement of assets hereafter acquired, in the ordinary course of business;
(c) Dispositions of Equipment or Real Estate to the extent that (i) such Property is exchanged for credit against the purchase price of similar replacement Property or (ii) the concurrent exchange proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions permitted by Section 9.2.9;
(e) Dispositions of Accounts to a television broadcast station third party in connection with the compromise, settlement or collection thereof in the Ordinary Course of long-term Station operating assets Business exclusive of factoring or similar arrangements so long as (i) the Account Debtor with respect thereto has instituted or consented to the institution of any Insolvency Proceeding, (ii) all such Dispositions do not exceed $250,000 in the aggregate in any Fiscal Year and (iii) the Net Proceeds thereof are applied in accordance with this Agreement; and
(f) other Dispositions so long as (i) at least 75% of the consideration paid in connection therewith shall be cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to paid contemporaneously with consummation of the transaction and shall be in an amount not less than the fair market value of the assets so exchanged as determined Property Disposed of, (ii) if such transaction is a Sale and Leaseback Transaction, such transaction is not prohibited by the Borrower terms of Section 9.2.20, (iii) such transaction does not involve the sale or other Disposition of a minority Equity Interests in good faith; provided that any Subsidiary, (iv) such transaction does not involve a sale or other Disposition of Accounts other than Accounts owned by or attributable to other property concurrently being Disposed of in a transaction otherwise permitted under this Section, and (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount net book value of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or otherwise disposed of by the Loan Parties and their Subsidiaries in all such proposed Asset Sales and all other Asset Sales made pursuant to transactions during the term of this Section 7.4(a)(iii) during Agreement shall not exceed 10% of Consolidated Tangible Assets as of the last day of the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clausefiscal quarter.
Appears in 1 contract
Disposition of Assets. The Borrower Company shall not, and shall not suffer or permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions and whether or not in a Sale-Leaseback Transaction) any Asset Sale property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except:
(ia) Asset Sales in the ordinary course dispositions of business of assets held for resale in the ordinary course of business inventory, or the trade in used, worn-out or replacement of assets surplus equipment, all in the ordinary course of business;
(iib) the concurrent exchange sale of equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the proceeds of such sale are promptly applied to the purchase price of such replacement equipment;
(c) the sale of property pursuant to a television broadcast station Sale-Leaseback Transaction if the resulting lease is permitted by Section 8.10;
(d) the sale or liquidation of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating Qualifying Investments in accordance with the terms of the Loan Documents;
(e) the sale of the assets at least equal set forth on Schedule 8.02;
(f) the sale of stock or assets of Unrestricted Subsidiaries;
(g) the sale, assignment, lease, conveyance, transfer or other disposition of other property not described in clauses (a)-(f), the aggregate fair market value of which does not exceed $25,000,000 per calendar year; provided however that to the extent any portion of such $25,000,000 basket is not utilized in any calendar year, up to $12,500,000 of such unutilized amount shall be added to the amount of the aggregate fair market value of the assets so exchanged as determined by which may be sold, assigned, leased, conveyed, transferred or otherwise disposed of under this clause (g) in the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchangefollowing year;
(Bh) at the request of the Administrative Agent dispositions (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1if any) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal pursuant to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchangeMSCG Crude Oil Supply Agreements; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(vi) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition transfer of any Hedge Agreement;
(viii) the transfer of property or assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to under Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause8.04.
Appears in 1 contract
Disposition of Assets. The Borrower Company shall not, and shall not permit any of its Restricted Subsidiaries to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Asset Sale property (including accounts and notes receivable, with or without recourse), except:
(ia) Asset Sales in the ordinary course dispositions of business of assets held for resale in the ordinary course of business obsolete or the trade in worn out property, whether now owned or replacement of assets hereafter acquired, in the ordinary course of business;
(b) dispositions of Inventory in the ordinary course of business;
(c) sales of equipment to the extent that (i) such equipment is exchanged for credit against the purchase price of similar replacement equipment or (ii) the concurrent exchange proceeds of such sale are reasonably promptly applied to the purchase price of such replacement equipment; 108
(d) dispositions of property by any Subsidiary to the Company or to a Wholly-Owned Subsidiary of the Company; provided that if the transferor of such property is a Subsidiary Guarantor, the transferee thereof must either be the Company or a Subsidiary Guarantor;
(e) mergers permitted under Section 8.3;
(f) dispositions (including by means of a television broadcast station or Sale/Leaseback Transaction) of long-term Station operating assets or cash (including Assets Held for Sale by the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower Company or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to of its Subsidiaries for consideration of not less than the fair market value of the assets so exchanged as determined disposed of;
(g) dispositions of assets for not less than fair market value in Sale/Leaseback Transactions permitted under Section 8.17; provided that the aggregate fair market value of all property sold pursuant to this clause (g) may not exceed $45,000,000;
(h) non-exclusive licenses of Intellectual Property granted in the ordinary course of business;
(i) transfers of Receivables under a Permitted Receivables Facility;
(j) leases or subleases of interests in real property of the Company or any Subsidiary entered into in the ordinary course of business; and
(k) dispositions not otherwise permitted under this Section 8.2 (including the disposition of all of the Equity Interests in any operating Subsidiary of the Company by the Borrower in good faithsale of such Equity Interests or by merger of such Subsidiary with or into another Person, but excluding any Sale/Leaseback transaction) which are made for fair market value; provided that (vi) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) disposition no Default or Event of Default shall have occurred and be continuing exist or would result therefrom, from such disposition; (ii) the aggregate fair market value of all property disposed of in reliance on this clause (i) in any (A) fiscal year shall not exceed $10,000,000 or (B) at least seventy-five percent (75%) since the date of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), Agreement shall not exceed fifteen percent $45,000,000; (15%iii) of the Operating Cash Flow purchase price for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject asset is paid to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of Company or such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvestedSubsidiary, as the case may be, pursuant to Section 2.6(b)(iii)in cash or Cash Equivalent Investments; provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
and (iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into proceeds from any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, disposition shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising applied in the ordinary course of business in connection accordance with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b2.7(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause.
Appears in 1 contract
Disposition of Assets. The Borrower Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Asset Sale property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except:: 116
(ia) Asset Sales in the ordinary course dispositions of business of assets held for resale in the ordinary course of business Inventory, or the trade in worn-out or replacement of assets surplus equipment, all in the ordinary course of business;
(iib) the concurrent exchange sale of equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the proceeds of such sale are reasonably promptly applied to the purchase price of such replacement equipment, unless such equipment is not needed in the Company's or such Subsidiary's business;
(c) transfers of Accounts Receivable under a television broadcast station or of long-term Station operating assets or cash Permitted Receivables Facility;
(d) dispositions not otherwise permitted hereunder (including the Capital Stock disposition of all of the capital stock of any operating Subsidiary by sale of stock or by merger of such Subsidiary with or into another Person and including a Person disposition pursuant to a sale and lease-back transaction) which owns long-term Station operating assets), are made for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to fair market value if the fair market value of the all assets so exchanged as determined disposed of by the Borrower Company and its Subsidiaries under this clause (d) does not exceed $25,000,000 in good faiththe aggregate; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (Bi) at the time of entering into any disposition, no Event of Default or Unmatured Event of Default shall exist or will result from such Station Sharing Arrangement disposition, (and after giving effect theretoii) no more than ten percent (10%) at least 75% of the Operating consideration received by the Company or such Subsidiary from such disposition is in cash or Cash Flow of Equivalent Investments and (iii) the Borrower and its Restricted Subsidiaries, proceeds thereof are applied as provided in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangementssubsection 2.8(a);
(ve) mergers expressly permitted by clauses (i) and (ii) of Section 8.3 or transfers by any Wholly-Owned Subsidiary of the sale or discount without recourse by Company of its assets upon its liquidation to the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower Company or any of its Restricted Subsidiaries 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 Wholly-Owned Subsidiaries;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ixf) dispositions of Investments in cash and Cash Equivalents;Assets Held for Sale which are made for fair market value; and
(Ag) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender dispositions of assets determined by the Borrower not exceeding $2,000,000 in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventyfiscal year for non-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseconsideration.
Appears in 1 contract
Disposition of Assets. The Borrower Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Asset Sale property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except:
(ia) Asset Sales in the ordinary course dispositions of business of assets held for resale in the ordinary course of business Inventory, or the trade in worn-out or replacement of assets surplus equipment, all in the ordinary course of business;
(iib) the concurrent exchange sale of equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the proceeds of such sale are reasonably promptly applied to the purchase price of such replacement equipment, unless such equipment is not needed in the Company's or such Subsidiary's business;
(c) transfers of Accounts Receivable under a television broadcast station or of long-term Station operating assets or cash Permitted Receivables Facility;
(d) dispositions not otherwise permitted hereunder (including the Capital Stock disposition of a all of the capital stock of any operating Subsidiary by sale of stock or by merger of such Subsidiary with or into another Person but excluding any Sale/Leaseback Transaction) which owns long-term Station operating assets)are made for fair market value if the fair market value of all assets so disposed of by the Company and its Subsidiaries under this clause (d) since the Closing Date does not exceed $*** in the aggregate; provided that (i) at the time of any disposition, for which the Borrower no Event of Default or any Restricted Subsidiary receives cashUnmatured Event of Default shall exist or will result from such disposition, Cash Equivalents or Station operating assets (ii) at least equal to 75% of the consideration received by the Company or such Subsidiary from such disposition is in cash or Cash Equivalent Investments, (iii) the proceeds thereof are applied as provided in subsection 2.8(a) and (iv) the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash Company's Arlington Plant #113 and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges Stockton Plant #33 shall not exceed thirty-five percent count towards the foregoing $*** amount;
(35%e) mergers expressly permitted by clauses (i) and (ii) of Section 8.3 or transfers by any Wholly-Owned Subsidiary of the aggregate consideration for such asset exchange, (x) Company of its assets upon its liquidation to the aggregate amount of all cash and Cash Equivalents paid by the Borrower Company or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirtyWholly-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchangeOwned Subsidiaries;
(Bf) at the request dispositions (including by means of the Administrative Agent a Sale/Leaseback Transaction) of Assets Held for Sale which are made for fair market value;
(g) dispositions of assets for not less than fair market value in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, Sale/Leaseback Transactions permitted under Section 8.18 (1) certifying provided that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, all property sold pursuant to this clause (2g) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall may not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchangeexceed $***); and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ixh) dispositions of Investments assets not exceeding $*** in any fiscal year for non-cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseconsideration.
Appears in 1 contract
Disposition of Assets. The Borrower Company shall not, and shall not suffer or permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Asset Sale property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except:
(ia) Asset Sales in the ordinary course dispositions of business of assets held for resale in the ordinary course of business inventory, or the trade in used, worn-out or replacement of assets surplus equipment (including, without limitation, demonstration or pilot plants), all in the ordinary course of business;
(iib) the concurrent exchange sale of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the proceeds of such sale are reasonably promptly applied to the purchase price of such replacement equipment within ninety (90) days of each such sale;
(c) each Specified Asset Sale;
(d) dispositions not otherwise permitted hereunder which are made for fair market value of the assets so exchanged as determined by the Borrower in good faithvalue; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (Bi) at the time of entering into any disposition, no Event of Default shall exist or shall result from such Station Sharing Arrangement disposition, (and after giving effect theretoii) no more not less than ten percent (10%) 80% of the Operating aggregate sales price from such disposition shall be paid in cash or Cash Flow Equivalents, and (iii) the aggregate value of all assets so sold by the Company and its Subsidiaries, together, shall not exceed (x) 5% of the Borrower net tangible assets of the Company and its Restricted SubsidiariesSubsidiaries on a consolidated basis during any twelve month period with net tangible assets to be measured as of the beginning of such period, in each case determined for and (y) 15% of the then applicable Reference Periodnet tangible assets of the Company and its Subsidiaries on a consolidated basis during the term of this Agreement, shall with net tangible assets to be attributable to Stations that are subject to Station Sharing Arrangementsmeasured as of the Closing Date;
(ve) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents not otherwise prohibited by the Loan Documents;
(f) Investments permitted under SECTION 8.04 and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, dispositions pursuant to Section 2.6(b)(iiia merger or other consolidation permitted under SECTION 8.03; and
(g) (it being understood and agreed that nothing in this clausetransfer of inventory, equipment or other assets from the Company to any Subsidiary which is not an Excluded Subsidiary or to the Company or any other such Subsidiary from any Subsidiary.
Appears in 1 contract
Disposition of Assets. The Borrower agrees that it shall not, and shall not permit cause its Subsidiaries to not, directly or indirectly enter into any of its Restricted Subsidiaries toagreement to sell, make assign, farm-out, convey or otherwise transfer any Asset Sale except:
(i) Asset Sales Oil and Gas Property included in the ordinary course most recently delivered Reserve Report or any other asset constituting Collateral except for (a) the sale of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets hydrocarbons in the ordinary course of business;
; (b) farmouts of undeveloped acreage and assignments in connection with such farmouts; (c) the sale or transfer of equipment and other property that is obsolete or no longer necessary for the business of such Loan Party or is replaced by equipment of at least comparable value and use; (d) the sale or other disposition (including casualty events) of any Oil and Gas Property or any interest therein or any Subsidiary owning Oil and Gas Properties; provided that (i) 100% of the consideration received in respect of such sale or other disposition shall be cash, (ii) the concurrent exchange consideration received in respect of a television broadcast station such sale or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least other disposition shall be equal to or greater than the fair market value of the assets so exchanged Oil and Gas Property, interest therein or Subsidiary subject of such sale or other disposition (as such value is reasonably determined by the Borrower and certified in good faith; provided that (v) no Default or Event a certificate of Default then exists or would result therefroma Responsible Officer of Borrower), (wiii) if such sale or other disposition (whether individually or in the aggregate amount with all related sales and dispositions) during any period between two successive Scheduled Borrowing Base Determinations has a fair market value in excess of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five one percent (351%) of the aggregate consideration for such asset exchangethen effective Borrowing Base, Borrow shall provide Administrative Agent ten (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (510) Business Days prior to the completion advance notice of such exchangesale or disposition, (iv) if such sale or other disposition results in the Combined Disposition/Derivative Threshold being exceeded, the Borrower Borrowing Base shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):be reduced,
(Aa) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
through (Bd) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not to exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to 5,000,000 during any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period period; (such portion f) Liens permitted by Section 8.01, Investments permitted by Section 8.04 and Restricted Payments permitted by Section 8.09; (g) sales and other dispositions of property from any Loan Party to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Periodanother Loan Party; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (Dh) the Net Proceeds (Asset Sales) sales or discounts of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of overdue accounts receivable arising in the ordinary course of business business, in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries to third Persons in the ordinary course of business that do and not interfere in any material respect with the business of the Borrower or any of its Restricted Subsidiaries;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clausefinancing transaction.
Appears in 1 contract
Samples: Credit Agreement (Midstates Petroleum Company, Inc.)
Disposition of Assets. The Each of Parent and Borrower agrees that it shall not, and shall not permit cause its Subsidiaries to not, directly or indirectly enter into any agreement to sell, assign, farm-out, convey, exchange or otherwise transfer (each a “Disposition”) any asset or in the case of its Restricted Subsidiaries toany Subsidiary, make issue or sell any Asset Sale exceptshares of such Subsidiary’ Equity Interests to any Person except for:
(ia) Asset Sales in the ordinary course sale of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets hydrocarbons in the ordinary course of business; farmouts of undeveloped acreage and assignments in connection with such farmouts;
(iib) if no Default, Event of Default or Borrowing Base Deficiency has occurred and is continuing or would result therefrom, the Disposition of Oil and Gas Properties to which no Proved Reserves are attributed;
(c) the concurrent exchange Disposition of a television broadcast station equipment that is obsolete or no longer necessary for the business of long-term Station operating assets such Loan Party or cash is replaced by equipment of at least comparable value and use;
(d) the Disposition (including the Capital Stock Casualty Events and Asset Swaps) of a Person which owns long-term Station operating assets), for which the Borrower any Oil and Gas Property or any Restricted interest therein or any Equity Interest of any Subsidiary receives cash, Cash Equivalents or Station operating assets at least owning Oil and Gas Properties; provided that:
(i) (other than in respect of Casualty Events) the consideration received in respect of such Disposition shall be equal to or greater than the fair market value of the assets so exchanged Oil and Gas Property, interest therein or Equity Interest subject of such Disposition (as such value is reasonably determined by Parent or Borrower and certified in a certificate of a Responsible Officer of Parent or Borrower delivered to the Administrative Agent);
(ii) Parent or Borrower in good faith; shall have provided that Administrative Agent notice of such Disposition not less than ten (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (510) Business Days prior to the completion consummation thereof (or such shorter period of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, and absolute discretion agree in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiiiwriting) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause7.02
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Midstates Petroleum Company, Inc.)
Disposition of Assets. The Borrower shall not, and shall not permit any of its the Restricted Subsidiaries to, make consummate any Asset Sale except:
unless (ia) Asset Sales in the ordinary course of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets in the ordinary course of business;
(ii) the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any such Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event subject of Default then exists or would result therefromsuch Asset Sale, (wb) the aggregate amount of all cash immediately before and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 immediately after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (Ax) no Default or Event of Default shall have occurred and be continuing or would result therefromand (y) the Borrower and its Restricted Subsidiaries shall be in compliance with the financial covenants set forth in Section 6.01, (Bc) at least seventy-five percent (75%) % of the consideration received in each by the Borrower or such Asset Sale (or series of related Asset Sales) Restricted Subsidiary therefor is in the form of cash or cash equivalents paid at the closing thereof and (d) an amount equal to all Net Cash Equivalents; provided Proceeds of such Asset Sale is applied to payment of the Obligations as set forth in and to the extent required by Section 2.10(c). The amount (without duplication) of (x) any Indebtedness (other than Subordinated Indebtedness) and other liabilities of the Borrower or such Restricted Subsidiary that is expressly assumed by the transferee in such Asset Sale and with respect to which the Borrower or such Restricted Subsidiary, as the case may be, is unconditionally released by the holder of such Indebtedness or liability, (y) any notes, securities or similar obligations or items of property received from such transferee that are converted into, sold or exchanged by the Borrower or such Restricted Subsidiary within 180 days of receipt for cash (to the extent of the cash actually so received), and Cash Equivalents shall include (z) any Designated Non-Cash Noncash Consideration having a fair market value at the time received an aggregate Fair Market Value that, when taken together with all other Designated Non-Cash Noncash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Noncash Consideration (with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to subsequent changes in value) $30,000,000, shall be deemed to be cash for purposes of this Section. If at any such Asset Sales and, if requested time any non-cash consideration received by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for Borrower or such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvestedRestricted Subsidiary, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such transfernon-cash consideration), such Credit Party shall not pay more than an amount equal to then the fair market value date of such assets as determined in good faith at conversion or disposition shall be deemed to constitute the time date of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such an Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents hereunder and the Net Proceeds (Asset Sales) thereof shall be applied to payment of such Asset Sale (or series of related Asset Sales) are applied or reinvested, the Obligations as set forth in and to the case may be, pursuant to extent required by Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause2.10(c).
Appears in 1 contract
Samples: Credit Agreement (Healthsouth Corp)
Disposition of Assets. The Borrower No Loan Party shall, nor shall not, and shall not it permit any of its Restricted Subsidiaries to, directly or indirectly make any Asset Sale Disposition (including as a result of the designation of any Restricted Subsidiary as an Unrestricted Subsidiary in accordance with Section 8.6), except:
(ia) Asset Sales in Dispositions constituting the ordinary course sale of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets inventory and Hydrocarbons in the ordinary course of business;
(b) Dispositions, for fair value, of (i) worn-out or obsolete equipment, (ii) equipment not necessary or useful to the concurrent exchange conduct of a television broadcast station the Loan Parties’ business or (iii) equipment that is replaced by equipment or personal property of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market comparable value of the assets so exchanged as determined by the Borrower in good faith; provided that and use;
(vc) no Default or Event of Default then exists or would result therefrom, Dispositions from (wi) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower Loan Party or any of its Restricted Subsidiaries to Borrower or any other Loan Party; provided that the requirements of Section 7.12 are then satisfied, (ii) from any Restricted Subsidiary that is not a Loan Party to any other Restricted Subsidiary that is not a Loan Party and (iii) from any Loan Party to any other Subsidiary that is not a Loan Party, so long as such Disposition constitutes an Investment permitted under Section 8.5;
(d) Dispositions of cash and Cash Equivalents in connection with any transaction not prohibited under this Agreement;
(e) the write-off, discount, sale or other Disposition of defaulted or past-due receivables and similar obligations in the ordinary course of business and not undertaken as part of an accounts receivable financing transaction;
(f) Dispositions of equipment or real property (other than Oil and Gas Properties) to the extent that (i) such asset exchange shall property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(g) non-exclusive licenses and sublicenses of intellectual property rights in the ordinary course of business not exceed thirty-five percent (35%) interfering in any material respect with the ordinary conduct of or materially detracting from the value of the aggregate amount paid business of the Loan Parties and their Restricted Subsidiaries;
(h) the abandonment or transferred Disposition of intellectual property rights that are no longer used or useful in the business of the Loan Parties and their Restricted Subsidiaries;
(i) Dispositions constituting Restricted Payments permitted under Section 8.4(a) or Investments permitted under Section 8.5;
(j) Dispositions consisting of any compulsory pooling or unitization ordered by the Borrower a Governmental Authority with jurisdiction over Borrower’s or any of its Restricted Subsidiaries Subsidiaries’ or any of the other Loan Parties’ Oil and Gas Properties;
(k) subject to Section 2.8(g), Dispositions of Proved Oil and Gas Properties (including (x) any Equity Interest of any Loan Party or Restricted Subsidiary that owns Proved Oil and Gas Properties that are included in connection with such asset exchange, the most recent Reserve Report and (y) as a result of the designation of any cash or Cash Equivalents that are received by the Borrower or any Restricted Subsidiary as an Unrestricted Subsidiary in connection accordance with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii8.6), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):; provided that:
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (Ai) no Default or Event of Default shall have occurred and be continuing or would result therefrom, both before and after giving effect thereto;
(Bii) at least seventy-five percent (75%) % of the consideration received in each respect to any such Asset Sale (or series of related Asset Sales) is Disposition shall be in the form of cash or Cash Equivalents; provided that cash and (A) cash, Cash Equivalents or the release or assumption of environmental or other liabilities related to any Oil and Gas Properties Disposed of in connection therewith and/or (B) other Proved Oil and Gas Properties; and
(iii) the consideration received shall include any Designated Non-Cash Consideration having a be equal to or greater than the fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of thereof (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and as reasonably determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) Responsible Officer of such Restricted Subsidiary in consideration Borrower and if requested by Administrative Agent, Borrower shall deliver a certificate of a contribution primarily consisting Responsible Officer of cash Borrower certifying to that effect);
(l) Farmouts of undeveloped acreage or assets used or useful undrilled xxxxx and assignments in a Permitted Business, connection with such Farmouts;
(Cm) any Asset Swaps;
(n) the portion Disposition of Operating Cash Flow for the most recent Reference Period Oil and Gas Properties that is attributable to the assets sold or disposed are not Proved Oil and Gas Properties;
(o) terminations of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by Hedging Agreements, so long as the Borrower remains in good faith, without compliance with Sections 7.15 and 8.16 after giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory termination;
(p) Casualty Events;
(q) Dispositions of the Borrower)Equity Interests of Unrestricted Subsidiaries; provided, shall not exceed fifteen percent that, (15%i) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) immediately before and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepaymentDisposition, no Event of Default shall have occurred and be continuing, and (ii) without regard to any thresholds or reinvestment provisions such Disposition shall be for fair market value and on arm’s length terms (in Section 2.6(b)(iiieach case as determined in good faith by the senior management of the Borrower);; and
(ivr) Asset Sales other Dispositions (other than Dispositions of Proved Oil and Gas Properties) in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior an aggregate amount for any fiscal year not to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) exceed at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiariesmade, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection together with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party Dispositions made pursuant to any other transaction permitted pursuant to Section 7.4(b);
this clause (ixr) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Partysuch fiscal year, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value greater of such assets as determined in good faith at the time of such transfer(i) $1,250,000 and (Cii) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business 2.5% of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower Borrowing Base then in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseeffect.
Appears in 1 contract
Samples: Credit Agreement (Peak Resources LP)
Disposition of Assets. A. The Borrower shall will not, and shall will not permit any of its Restricted Subsidiaries to, make dispose of all or any Asset Sale except:
part of its interest in any asset, except that the Borrower and its Subsidiaries may sell or otherwise dispose of assets so long as either (i) Asset Sales such sales are approved by the Required Banks; (ii) such sales are for at least the fair market value of such assets and the aggregate amount of such asset sales is less than $500,000 in any 12-month period and, in any such case, the Borrower or such Subsidiary complies with the mandatory prepayment and Commitment reduction provisions herein and, in the ordinary course case of business Collateral, so long as the conditions to the release of assets held for resale Collateral described herein and in the ordinary course applicable Security Documents are met; (iii) such sales are of business or the trade in or replacement of assets inventory and in the ordinary course of business;
; (iiiv) the concurrent exchange of a television broadcast station such sales or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that other dispositions are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion)equipment that has become worn out, a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property obsolete or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) damaged or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that otherwise unsuitable or no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow longer needed for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business use in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) Subsidiaries or should be replaced, as the disposition case may be, in each case as determined in good faith by the board of any Hedge Agreement;
(viii) the transfer directors of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) its Subsidiary, as the transfer by any Credit Party of its assets to any other Credit Partycase may be, (B) for at least the transfer by any Non-Guarantor Subsidiary fair market value of its assets such equipment, (C) not in excess of $100,000 individually or $250,000 per year in the aggregate for sales of such equipment and (D) the proceeds of the sales of such equipment are used within 90 days of such sales to any (1) purchase equipment used in substantially similar lines of business or (2) repay Indebtedness under this Credit Party Agreement pursuant to Section 3.01; (provided that in connection with any v) such transfer, such Credit Party shall sales or other dispositions do not pay more than an amount equal to exceed $50,000 individually and are for at least the fair market value of such assets or as determined in good faith at to such other dispositions, the time likely amount of net sales proceeds that would be realized upon a sale of such transferassets is such that a sale of such assets is not, in the reasonable judgment of the Borrower, economically practicable but such other disposition is otherwise of commercial value to the Borrower; provided that in no case shall sales pursuant to this clause (v) exceed an aggregate of $100,000 in any fiscal year, and in the case of Collateral, so long as the conditions to the release of Collateral described herein and in the applicable Security Documents are met; (Cvi) such sales consist of the transfer by licensing or sublicensing of the Borrower's or any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable Subsidiaries' Intellectual Property in the business ordinary course of business; or (vii) such sales are of equity securities under any stock option or other benefit plan available to the employees or directors of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined Subsidiaries. The consideration received by the Borrower in good faith and its Subsidiaries from each sale of assets permitted by subsections (i) and (ii) above, other than with respect to (1) no longer be necessary such sales involving consideration of not more than $100,000 in the conduct of its business aggregate in the ordinary course and (2) any fiscal year, shall be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition payable by the Borrower or any purchaser in whole within 15 days of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that and at least seventy-five percent (75%) 70% of the consideration received in from each such Asset Sale (or series sale shall consist of related Asset Sales) is in the form of cash Cash or Cash Equivalents Equivalents. Any non-cash proceeds received from the sale of assets constituting Collateral shall be pledged pursuant to and in accordance with the applicable Security Documents and shall constitute Collateral.
B. Upon compliance with the conditions in subsec- tion A of this Section 7.13, the Release Conditions and the Net Proceeds Partial Release Conditions (Asset Saleseach as hereinafter defined), the Borrower shall be entitled to receive from Collateral Agent an instrument in form and substance reasonably satisfactory to the Borrower (each, a "Release"), releasing the Lien of the Mortgage with respect to all or any portion of a Mortgaged Real Property (each, a "Released Real Property"). The Borrower shall exercise its rights under this Section by delivering to Collateral Agent a notice (each, a "Release Notice"), which shall refer to this Section, describe with particularity the proposed Released Real Property and be accompanied by (i) four counterparts of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood Release fully executed and agreed that nothing in this clauseacknowledged by all necessary parties other than Collateral Agent,
Appears in 1 contract
Samples: Credit Agreement (Carson Inc)
Disposition of Assets. The Borrower MLP shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, Dispose of (whether in one or a series of transactions) any Asset Sale Property (including accounts and notes receivable, with or without recourse), except:
(ia) Asset Sales in the ordinary course Dispositions of business of assets held for resale in the ordinary course of business excess, obsolete or the trade in or replacement of assets worn-out equipment in the ordinary course of business;
(b) Dispositions of inventory or other assets sold, leased or licensed out in the ordinary course of business;
(c) the abandonment, cancellation or disposition of any intellectual property of such Person in the ordinary course of business;
(d) Dispositions of Property (i) by any Loan Party to any other Loan Party and (ii) the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or by any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal that is not a Loan Party to the fair market value MLP or to another Restricted Subsidiary;
(e) Investments permitted under Section 8.04, Liens permitted under Section 8.01 and Restricted Payments permitted under Section 8.08, in each case to the extent constituting a Disposition;
(f) Dispositions of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by in the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) ordinary course of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchangebusiness;
(Bg) at the request Dispositions consisting of the Administrative Agent (in its sole discretion)write-off, a certificatediscount, executed by an Authorized Signatory of the Borrower, (1) certifying that the property sale or other consideration received by the Borrower Disposition of defaulted or past due receivables and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising similar obligations in the ordinary course of business in connection with the compromise or collection thereofand not as part of an accounts receivable financing transaction;
(vih) Dispositions of Property subject to condemnation, takings or casualty events;
(i) any Disposition by reason of the exercise of termination rights under any lease, sublease, license, sublicense, concession or other agreement that is either immaterial to, or no longer necessary for, the conduct of the business of such Person;
(j) easements, rights of way, leases, subleases, easements sales, licenses or licenses sublicenses of real or personal property granted by the Borrower or any of its Restricted Subsidiaries such Person to third Persons others in the ordinary course of business that do not interfere interfering in any material respect with the business of the Borrower or any of its Restricted Subsidiariessuch Person;
(viik) Dispositions of the disposition of any Hedge Agreement;assets of, or Equity Interests in, Immaterial Subsidiaries; and
(viiil) the transfer other Dispositions of assets not to the Borrower or exceed $20,000,000 during any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business fiscal year of the Borrower or any of its Restricted Subsidiaries and MLP (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) and, to the extent constituting Asset Salesapplicable, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets subject to the extent that such sale or other disposition is required by Applicable Laws or final order prepayment provisions of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause2.04(b)(iii)).
Appears in 1 contract
Disposition of Assets. (a) The Borrower shall will not, and shall will not permit any of its Restricted Subsidiaries to, make dispose of all or any Asset Sale except:
part of its interest in any asset, except that the Borrower and its Subsidiaries may sell assets so long as (i) Asset Sales such sales are approved by the Required Banks and the sales price thereof is, in the ordinary course reasonable judgment of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets in the ordinary course of business;
(ii) the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets)Agent, for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of such assets, or (ii) such sales are for at least the fair market value of such assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) and the aggregate amount of all cash such asset sales is less than $250,000 in any 12-month period and, in any such case, the Borrower complies with the mandatory prepayment and Cash Equivalents Commitment reduction provisions of this Agreement and, in the case of Collateral, so long as the conditions to the release of Collateral described herein and in the applicable Security Documents are met, or (iii) such sales are of inventory in the ordinary course of business, or (iv) such sales are (A) of obsolete equipment, (B) for at least the fair market value of such equipment, (C) not in excess of 250,000 per year in the aggregate and (D) the proceeds of such sales are used within 60 days of such sales to (1) purchase equipment used in substantially similar lines of business or (2) repay Indebtedness under this Agreement pursuant to Section 3.02. The consideration received by the Borrower or any Restricted Subsidiary its Subsidiaries from each sale of assets permitted above shall be received in connection whole at the time of sale and at least 70% of the consideration from each sale shall consist of Cash or Cash Equivalents. Any non-cash proceeds received from the sale of assets shall be pledged to the Collateral Agent pursuant to and in accordance with such asset exchanges the applicable Security Documents and shall not exceed thirty-five percent constitute Collateral.
(35%b) Upon compliance with the conditions in subsection (a) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii7.15, the Release Conditions and the Partial Release Conditions (each as hereinafter defined), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide be entitled to receive from the Administrative Collateral Agent (in each case an instrument in form and substance reasonably satisfactory to the Administrative Agent):
Borrower (Aeach, a "Release") releasing the Lien of the Mortgage with respect to all or any portion of a written notification of such exchange describing Mortgaged Real Property (each, a "Released Real Property"). The Borrower shall exercise its rights under this Section by delivering to the assets Collateral Agent a notice (each, a "Release Notice"), which shall refer to be exchanged and this Section, describe with particularity the proposed closing date Released Real Property and be accompanied by (i) four counterparts of the exchange;
Release fully executed and acknowledged by all necessary parties other than Collateral Agent, (Bii) at executed counterparts of UCC or other applicable termination statements necessary to terminate the request Lien of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower applicable Mortgage and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) an Officers' Certificate certifying that no Default or Event of Default shall have occurred and the parties executing any and all documents in connection with the Release (other than the Collateral Agent) were duly authorized to do so (collectively, the "Release Conditions"). In the event the proposed Released Real Property consists of less than all of the Mortgaged Real Property subject to a single Mortgage, the Partial Release Conditions must be continuing or would result therefrom, satisfied in order for the Borrower to receive the Release.
(Bc) at least seventy-five percent The Collateral Agent's obligation to deliver a Release in respect of less than all of the Mortgaged Real Property subject to a single Mortgage shall be contingent upon the satisfaction of the conditions in subsection (75%a) of this Section 7.15 and the consideration received in each Release Conditions as well as the following conditions (collectively, the "Partial Release Conditions"):
(i) following the sale, transfer or other disposition of and release of the Lien of the applicable Mortgage with respect to the proposed Released Real Property, the remaining Mortgaged Real Property shall have utility services and access to public roads, rail spurs and other transportation structures sufficient and necessary for the continued use of such Asset Sale (or series of related Asset Sales) is Mortgaged Real Property in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect manner utilized prior to the applicable Asset Sale); provided further that this clause Release;
(Bii) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to following the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash sale, transfer or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory disposition of the Borrower)proposed Released Real Property, the remaining Mortgaged Real Property shall not exceed fifteen percent comply in all material respects with applicable laws, rules, regulations and ordinances relating to environmental protection, zoning, land use, configuration and building and workplace safety;
(15%iii) following the sale, transfer or other disposition of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender proposed Released Real Property, the value of the remaining Mortgaged Real Property shall not be subject less than the value of such remaining Mortgaged Real Property prior to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii)Release;
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior Title Company shall have issued an endorsement to the entry into any Station Sharing Arrangement (or such later time as may be approved by Banks' title insurance policy relating to the Administrative Agent in its sole discretion)Mortgaged Real Property confirming that after the proposed release, the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) Lien of the Operating Cash Flow of applicable Mortgage continues unimpaired as a first priority Lien upon the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable remaining Mortgaged Real Property subject only to Stations that are subject to Station Sharing Arrangements;Prior Liens; and
(v) the sale or discount without recourse by Borrower shall cause to have been delivered to Collateral Agent an Officer's Certificate certifying that the Borrower or any Restricted Subsidiary thereof of accounts receivable arising conditions set forth in the ordinary course of business in connection with the compromise or collection thereof;subsections (i) through (iv) have been satisfied.
(vid) leasesThe Collateral Agent shall execute, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
acknowledge (viiif applicable) the disposition of any Hedge Agreement;
(viii) the transfer of assets and deliver to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
counterparts of the documents described in subsection (ixb)(i) dispositions and (ii) within 30 days after receipt by the Collateral Agent of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (a Release Notice provided that the Release Conditions and the Partial Release Conditions (if applicable) have been satisfied. The Borrower shall (i) execute, deliver, obtain and record such instruments as the Collateral Agent may require, including, without limitation, amendments to the Security Documents or this Agreement and (ii) deliver to the Collateral Agent such evidence of the satisfaction of the Release Conditions and the Partial Release Conditions as the Collateral Agent may require. The Borrower shall reimburse the Collateral Agent, Agent and the Banks upon demand for all costs or expenses incurred in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted actions taken pursuant to this Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause7.15.
Appears in 1 contract
Disposition of Assets. The Borrower shall will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, make Dispose of any Asset Sale property except:
(ia) Asset Sales in the ordinary course sale of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets Hydrocarbons in the ordinary course of business;
(iib) the concurrent exchange Disposition of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash equipment and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the other property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise business, that is obsolete or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable necessary in the business of the Borrower or any of its Subsidiaries or that is being replaced by equipment of comparable value and utility;
(c) Liens permitted by Section 6.03, Investments permitted by Section 6.07 and Restricted Subsidiaries Payments permitted by Section 6.09;
(d) Dispositions of cash and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business Cash Equivalents in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCCbusiness;
(xiie) Asset Sales any Credit Party may Dispose of its property to another Credit Party;
(f) sales or discounts of overdue accounts receivable in the ordinary course of business, in connection with insurance the compromise or collection thereof, and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with not in connection therewithwith any financing transaction;
(xiiig) other Dispositions of Oil and Gas Property (other than Hedge Modifications or Production Payments), provided that:
(i) the consideration received shall be at least equal to the extent constituting Asset Sales, mergers, consolidations Fair Market Value of the Oil and liquidations permitted Gas Property subject to such Disposition (and with respect to Dispositions involving consideration in excess of $2,000,000 individually and $10,000,000 in the aggregate for all Dispositions pursuant to this Section 7.4(b6.05, the Borrower shall deliver to the Administrative Agent a certificate of a Responsible Officer certifying that such Disposition was for Fair Market Value), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xivii) 100% of the sale or other disposition consideration received by the Borrower or any Subsidiary in respect of its Restricted Subsidiaries such Disposition is cash or Cash Equivalents; and
(iii) the Net Cash Proceeds of assets such Disposition are used to prepay the Loans to the extent required pursuant to Section 2.07(a).
(h) substantially contemporaneous (and in any event occurring within 30 days of each other) Dispositions of Oil and Gas Properties as to which no Proved Reserves are attributable in exchange for other Oil and Gas Properties provided that such sale (i) the Fair Market Value of the Oil and Gas Properties exchanged by the Borrower or its Subsidiary (together with any cash) is reasonably equivalent to the Fair Market Value of the Oil and Gas Properties (together with any cash) to be received by the Borrower or its Subsidiary, and (ii) any cash received must be applied in accordance with Section 2.07;
(i) Dispositions of seismic, geologic or other disposition is required by Applicable Laws or final order of the FCCdata and license rights; and
(j) Hedge Modifications; provided that at least seventy-five percent (75%) of the consideration received in each for such Asset Sale Hedge Modification is at least equal to Fair Market Value.
(k) a DrillCo Required Disposition so long as the Administrative Agent (or series any designee thereof) has received within 30 days of related Asset Sales) the date on which such DrillCo Required Disposition is effected, a duly executed Mortgage granting an Acceptable Security Interest in the applicable Credit Party’s interest in the DrillCo Joint Well that is the subject of such DrillCo Required Disposition (“DrillCo Mortgage”).
(l) Dispositions pursuant to a decision not to participate in an Oklahoma Corporation Commission Force Pooling Order or any relinquishment of any interests in any oil and gas leases pursuant to a non-consent provision of a standard form of cash joint operating agreement.
(m) Any farm-out, drillco or Cash Equivalents similar arrangement with respect to any Non-Core Assets.
(n) Dispositions of interests in any Subject Lease pursuant to the exercise by a third party of its right to acquire an interest therein, to the extent and pursuant to the Net Proceeds (Asset Sales) terms of such Asset Sale right as in effect on the date hereof, which Disposition is effected on or before the 90th day after such Subject Lease is acquired by a Credit Party (or series of related Asset Sales) are applied or reinvestedor, as in the case may beof Subject Leases held on the Effective Date which were not subject to a mortgage under the Existing Credit Agreement, the 90th day after the Effective Date).
(o) Other dispositions and sales of Properties (including any midstream assets or gathering systems) not otherwise permitted pursuant to this Section 2.6(b)(iii6.07 having a fair market value not to exceed $5,000,000 in the aggregate for all dispositions and sales of Properties pursuant to this Section 6.05(l) (it being understood and agreed that nothing in for the term of this clauseAgreement.
Appears in 1 contract
Disposition of Assets. The Borrower shall will not, and shall will not permit or cause any of its Restricted Subsidiaries to, make sell, assign, lease, convey, transfer or otherwise dispose (“Disposition” or “Dispose”) of (whether in one or a series of transactions), with a fair market value in excess of $12,500,000, all or any Asset Sale exceptportion of its assets, business or properties (including, without limitation, any issuance or sale of Capital Stock of any Restricted Subsidiary of the Borrower to any Person other than the Borrower or any of its Restricted Subsidiaries), or enter into any arrangement with any Person providing for the lease by the Borrower or any of its Restricted Subsidiaries as lessee of any asset that has been sold or transferred by the Borrower or such Restricted Subsidiary to such Person, except for:
(ia) Asset Sales in the ordinary course Disposition of business of assets inventory, goods held for resale sale and other assets and licenses or leases of intellectual property (including on an intercompany basis), in the ordinary course of business or the trade in or replacement of assets each case in the ordinary course of business;
(iib) the concurrent exchange Disposition of a television broadcast station used, obsolete, damaged, worn-out or surplus equipment, or property no longer useful in the conduct of long-term Station operating assets the business or cash otherwise economically impracticable to maintain, whether now owned or hereafter acquired, in the ordinary course of business;
(c) Dispositions (including the of Capital Stock of a Person which owns long-term Station operating assets), for which Stock) among the Borrower or and/or any Restricted Subsidiary receives cash, (upon voluntary liquidation or otherwise); provided that any such Disposition by a Credit Party to a Person that is a Non-Credit Party shall be (i) for fair market value (as reasonably determined by such Person) and at least 75.0% of the consideration for such Disposition consists of Cash or Cash Equivalents at the time of such Disposition or Station operating (ii) treated as an Investment and otherwise made in compliance with Section 8.05;
(d) any transaction permitted under Section 8.01 or 8.06;
(e) the settlement or write-off of accounts receivable or sale of overdue accounts receivable (including any discount or forgiveness thereof) for collection in the ordinary course of business;
(f) the Disposition of non-core or non-strategic assets at least equal acquired in connection with a Permitted Acquisition or similar investment; provided that (x) to the extent required by Section 2.06(f), such Net Cash Proceeds from any such sale are reinvested or applied in prepayment of the Loans in accordance with the provisions of Section 2.06(f), (y) immediately after giving effect thereto, no Event of Default would exist and (z) the fair market value of the such non-core or non-strategic assets so exchanged Disposed shall not exceed 25% of the purchase price paid for all such assets acquired in such Permitted Acquisition;
(g) the Disposition of Cash or Cash Equivalents in the ordinary course of business;
(h) any Disposition of Realty to a Governmental Authority as determined by the Borrower in good faitha result of eminent domain, casualty, foreclosure or condemnation of such Realty; provided that the Net Cash Proceeds from any such Disposition are subject to the provisions of Section 2.06(e);
(vi) no Default the Disposition of other assets outside the ordinary course of business for fair market value; provided that with respect to any such Disposition (in a single transaction or Event in a series of Default then exists related transactions) with a purchase price in an aggregate amount in excess of $12,500,000, at least 75.0% of the consideration for such Disposition shall consist of Cash or would result therefromCash Equivalents (provided that for purposes of the 75.0% Cash consideration requirement, (w) the aggregate amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities (I) that are subordinated to the Obligations, (II) that are unsecured or secured by Liens that are expressly junior to the Liens securing the Secured Obligations or (III) that are owed to Holdings, the Borrower or a Restricted Subsidiary) of the Borrower or any applicable Restricted Subsidiary (as shown on such Person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets and for which Holdings, the Borrower and its Restricted Subsidiaries shall have been validly released by all cash and Cash Equivalents relevant creditors in writing), (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (y) any securities received by the Borrower or any Restricted Subsidiary in connection with from such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for transferee that are converted by such asset exchange, (x) the aggregate amount of all cash and Person into Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by (to the Borrower extent of the Cash or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(iiCash Equivalents received) shall be applied pursuant to Section 2.6(b)(iii), within 180 days following the closing of the applicable Disposition and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration received in respect of such Disposition having a an aggregate fair market value at the time received thatvalue, when taken together with all other Designated Non-Cash Consideration previously received and then pursuant to this clause (z) that is at that time outstanding, does not exceed in excess of $15,000,000 as of the greater last day of the most recently ended Test Period shall be deemed to be Cash; provided, further, that (xi) $75,000,000 and (y) one percent (1.0%) no Event of Consolidated Total Assets (calculated at Default exists on the time of receipt of date on which the agreement governing such Designated Non-Cash Consideration and determined Disposition is executed or would result after giving effect to the applicable Asset Saleconsummation thereof and (ii) the Net Cash Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.06(f); provided further that this clause ;
(Bj) shall not apply to the extent constituting or resulting in a Disposition of assets by the Borrower or any of its Restricted Subsidiaries, Investments permitted by Section 8.05, Permitted Liens and Sale and Lease-Back Transactions permitted by Section 8.14;
(k) the termination of a lease due to the default of the landlord thereunder or pursuant to any issuance right of termination of the tenant under the lease;
(l) Dispositions 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) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such similar replacement property;
(m) the lease or sub-lease of any real property not used or necessary in the operations of the Borrower or any Restricted Subsidiary, and the termination or non-renewal of any real property lease not used or necessary to the operations of the Borrower or any Restricted Subsidiary;
(n) Dispositions in the ordinary course of business consisting of the abandonment of intellectual property rights 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, taken as a whole;
(o) Dispositions of Investments in joint ventures or any Restricted Subsidiaries that are not Wholly Owned Subsidiaries to the extent required by, or made pursuant to, buy/sell arrangements between joint venture or similar parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(p) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(q) Dispositions in connection with the termination or unwinding of Derivative Transactions;
(r) Dispositions of Capital Stock or Indebtedness of Unrestricted Subsidiaries;
(s) Dispositions in connection with the Transactions;
(t) exchanges or swaps, including transactions covered by a non-wholly owned Restricted Subsidiary to Section 1031 of the non-Affiliate owner(s) Code (or any comparable provision of such Restricted Subsidiary in consideration any foreign jurisdiction), of a contribution primarily consisting of cash property or assets used so long as the exchange or useful in a Permitted Business, swap is made for fair value (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be as reasonably determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Periodlike property or assets; provided that (i) within 90 days of any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceededsuch exchange or swap, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant Credit Party and to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to extent such Asset Sale, being greater than 3.25 to 1.00property does not constitute an Excluded Asset, the Borrower Administrative Agent has a perfected Lien having the same priority as any Lien held on the Realty so exchanged or swapped and (ii) any Net Cash Proceeds received as a “cash boot” in connection with any such transaction shall prepay be applied and/or reinvested as (and to the Loans as provided in extent) required by Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii2.06(f);
(ivu) Asset Sales any merger, consolidation, Disposition or conveyance, the sole purpose and effect of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the form U.S. or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction; provided, that any Credit Party involved in such transaction does not become an Excluded Subsidiary as a result of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement transaction and any other material agreement or document with respect to Restricted Subsidiary does not become an Unrestricted Subsidiary as a result of such Station Sharing Arrangement and (B) transaction unless the designation of such Restricted Subsidiary as an Unrestricted Subsidiary is permitted under Section 8.05 at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangementstime;
(v) the sale or discount without recourse Disposition of Capital Stock to qualify directors where required by applicable law or to satisfy Requirements of Law with respect to ownership of the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business Capital Stock;
(w) Dispositions in connection with the compromise or collection thereofXxxxxxx Sale;
(vix) leases, subleases, easements or licenses granted Dispositions of accounts receivable and related assets of Foreign Subsidiaries pursuant to any Foreign Factoring Arrangement; and
(y) other Dispositions involving assets having a fair market value (as reasonably determined by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transferthe relevant Disposition) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business aggregate of not more than the greater of $20,000,000 and 0.75% of Consolidated Total Assets as of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders last day of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clausemost recently ended Test Period.
Appears in 1 contract
Samples: Credit Agreement (Metaldyne Performance Group Inc.)
Disposition of Assets. The Borrower Company shall not, and shall not suffer or permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Asset Sale property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except:
(ia) Asset Sales in the ordinary course dispositions of business of assets held for resale in the ordinary course of business inventory, or the trade in used, worn-out or replacement of assets surplus equipment, all in the ordinary course of business;
(iib) the concurrent exchange sale of a television broadcast station equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the proceeds of long-term Station operating such sale are reasonably promptly applied to the purchase price of such replacement equipment;
(c) dispositions of assets or cash (including by the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower Company or any Restricted Subsidiary receives cashto the Company or any Subsidiary pursuant to reasonable business requirements provided, Cash Equivalents or Station operating that the Company may not transfer any assets at least equal other than timber and timberlands to any Subsidiary if the fair market value of the assets so exchanged as determined by transferred assets, in the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefromaggregate, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection taken together with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of all other assets (other than timber or timberlands) transferred by the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) Company to any Subsidiary at any time after the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless date of whether a Suspension Period is in effect this Agreement would exceed at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect proposed transfer an amount equal to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (755%) of the consideration received in each such Asset Sale (or series book value of related Asset Sales) is in the form of cash or Cash Equivalents; Company's assets as reflected on its most recent financial statements provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, Agent pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio6.01 hereof, calculated after giving pro forma effect to or, if no such Asset Sale, being greater than 3.25 to 1.00financial statements have yet been required under Section 6.01, the Borrower shall prepay the Loans as provided financial statements referenced in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales)5.11 hereof, or if lessand provided, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard further, that the Company may not transfer any timber and timberlands to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to if the fair market value of such assets as determined timber and timberlands, in good faith at the time aggregate, taken together with the fair market value of such transfer) and (C) all other timber or timberlands transferred by the transfer by any Non-Guarantor Subsidiary of its assets Company to any other Non-Guarantor SubsidiarySubsidiary at any time after the date of this Agreement would exceed the sum of $60,000,000;
(xid) (A) dispositions consisting of the sale exchange of obsolete, worn-out or surplus assets no longer for assets of an equivalent value and of a similar nature to be used or usable in the business of the Borrower Company or any Subsidiary to any Person; and
(e) dispositions not otherwise prohibited hereunder; provided, that such dispositions are made for fair market value; and provided further, that (i) at the time of its Restricted Subsidiaries any such disposition, no Event of Default shall exist or shall result from such disposition and (Bii) the forfeiture or surrender aggregate value of all assets determined so sold by the Borrower Company and its Subsidiaries, together, shall not exceed in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clausefiscal year $60,000,000.
Appears in 1 contract
Samples: Credit Agreement (Longview Fibre Co)
Disposition of Assets. The None of the Borrower shall notor any --------------------- Restricted Subsidiary will become a party to or agree to or effect any disposition of assets, and shall not permit any other than (a) the sale by the Borrower or a Restricted Subsidiary of its Restricted Subsidiaries to, make any Asset Sale except:
(i) Asset Sales in the ordinary course of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets inventory in the ordinary course of business;
, consistent with past practices, or (iib) the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which sale by the Borrower or any a Restricted Subsidiary receives cash, Cash Equivalents or Station operating of assets at least equal pursuant to the fair market value of the assets so exchanged as determined sale-leaseback transactions permitted under (S)10.6 hereof, (c) sales by the Borrower or a Restricted Subsidiary to third parties of Capital Assets for fair and reasonable value in good faith; cash, the proceeds of which are reinvested or committed to be reinvested as Capital Expenditures in similar Capital Assets within 365 days of such sale, or (d) sales by the Borrower or a Restricted Subsidiary to third parties of assets for fair and reasonable value, provided that that, with -------- respect to sales under this clause (vd): (i) no Default or Event of Default then exists or would result therefrompursuant to (S)14.1(a), (wb) or (c) hereof (only with regard to (S)11 hereof) shall have occurred and be continuing at the time of such sale and no such Default or Event of Default will exist after giving effect to such sale; (ii) at least eighty percent (80%) of the purchase price for such assets is received in cash and the cash net proceeds (after appropriate reserves and holdbacks) from such sales in excess of $1,000,000 are applied (A) immediately upon receipt thereof to reimburse the Borrower or its Restricted Subsidiaries for expenditures made, and costs incurred, to repair, rebuild, replace or restore property subject to loss, damage or taking, (B) immediately upon receipt thereof to pay any outstanding amounts due under the Revolving Credit Loans and the Acquisition Loans and (C) within 365 days of receipt (1) if prior to the end of the Disbursement Period, to permanently reduce the Acquisition Loan Commitment in an amount equal to such net cash proceeds, or (2) if after the end of the Disbursement Period, to prepay the Acquisition Loan, such prepayment to be applied against the scheduled installments of principal due on the Acquisition Loan in the inverse order of maturity; (iii) the aggregate amount of all cash and Cash Equivalents Borrower or such Restricted Subsidiary has delivered any promissory note or other instrument received by the Borrower or any such Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior sale to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (held in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clausepledge
Appears in 1 contract
Samples: Revolving Credit and Acquisition Loan Agreement (Jackson Products Inc)
Disposition of Assets. The Borrower Company shall not, and shall not suffer or permit any of its Restricted Subsidiaries Subsidiary (other than any Project Finance Subsidiary or any International Subsidiary) to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Asset Sale assets (including accounts and notes receivable, with or without recourse, and including any interest in any Subsidiary) or enter into any agreement to do any of the foregoing, except:
(i) Asset Sales dispositions of inventory (including inventory comprised of electric energy, gas, oil, coal, aggregate and other materials and products generated, manufactured, produced, mined or purchased for sale, distribution or use in the ordinary course of business of assets held for resale in the ordinary course of business business), or the trade in used, worn-out, damaged or replacement of assets surplus equipment, all in the ordinary course of business;
(ii) the concurrent exchange sale of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal equipment to the fair market value extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event proceeds of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that sale are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be reasonably promptly applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion purchase price of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably requestreplacement equipment;
(iii) dispositions of assets by the Company or any Subsidiary to the Company or any Subsidiary (other Asset Sales (including any Asset Sale than a Project Finance Subsidiary) pursuant to a Spectrum Tender)reasonable business requirements;
(iv) exchanges of property on which recognition of gain or loss would be exempted from recognition pursuant to section 1031 of the Code; or 709152408 03173762
(v) the sale, assignment or other transfer of accounts receivable, lease receivables or other rights to payment pursuant to any Securitization Transaction; provided that dispositions not prohibited by other provisions of this Agreement and not otherwise permitted by the foregoing which are made for fair market value are permitted so long as (Aw) at the time of any disposition, no Default or Event of Default shall have occurred and be continuing exist or would shall result therefromfrom such disposition, (Bx) at least seventy-five percent the aggregate sales price from such disposition shall be paid (75%1) in cash, (2) in marketable securities that are the subject of widely or regularly distributed standard price quotations, and/or (3) through the consideration received in each issuance of indebtedness by the buyer of such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalentsassets; provided that cash and Cash Equivalents the aggregate outstanding principal amount of all such indebtedness shall include not at any Designated Non-Cash Consideration having a fair market value at the time received thatexceed $35,000,000, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) the aggregate value of Consolidated Total Assets (calculated at all assets so sold by the time of receipt of such Designated Non-Cash Consideration Company and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made its Subsidiaries pursuant to this Section 7.4(a)(iiiclauses (i) during the immediately preceding 12-month period through (such portion to be determined by the Borrower in good faithiv), without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower)together, shall not exceed fifteen percent in any fiscal year 20% of total consolidated assets (15%as determined in accordance with GAAP) of the Company and its Subsidiaries, based upon the most recent financial statements delivered to the Administrative Agent under Section 6.01, and (z) the aggregate amount of all Securitization Obligations shall not at any time exceed $75,000,000; and provided, further, that in no event shall the Company sell, assign, lease, convey, transfer or otherwise dispose of any capital stock or other equity interests in any of the Principal Operating Cash Flow for such Reference Period; provided that any Asset Sale Subsidiaries, except pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (merger or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to in accordance with Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause7.03.
Appears in 1 contract
Disposition of Assets. The Borrower shall not, and shall not permit any of its the Restricted Subsidiaries to, make at any Asset Sale except:
time sell, lease, abandon, or otherwise dispose of any assets (i) Asset Sales in the ordinary course other than assets disposed of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets in the ordinary course of business;
), except for (i) the transfer of assets (including cash or cash equivalents) among the Credit Parties (excluding Subsidiaries of such Persons described in clause (b) of the definition of “Subsidiary” if the requirements of clause (a) thereof are not otherwise met) or the transfer of assets (including cash or cash equivalents) between or among Restricted Subsidiaries (excluding Subsidiaries of such Persons described in clause (b) of the definition of “Subsidiary” if the requirements of clause (a) thereof are not otherwise met) or (ii) the concurrent exchange disposition of a television broadcast station or of long-term Station operating assets or cash (including for fair market value, provided that the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the aggregate fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and by the Credit Parties during any fiscal year (including all other Asset Sales made assets disposed of pursuant to this Section 7.4(a)(iii7.8 hereof) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, Consolidated Total Assets as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow last day of the Borrower and its Restricted Subsidiariesimmediately preceding fiscal year; provided, however, that, in each case determined for the then applicable Reference Periodunder clause (ii) hereof, shall so long as no Default or Event of Default exists or will be attributable caused to Stations that are subject to Station Sharing Arrangements;
(v) the occur as a result thereof. Upon any sale or discount without recourse by disposition of a Restricted Subsidiary permitted hereunder, such Restricted Subsidiary will be released from its obligations under the Loan Documents to which it is a party and the Administrative Agent and the Lenders shall, at the Borrower’s expense, take such actions as the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries reasonably requests 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets evidence and give effect to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauserelease.
Appears in 1 contract
Disposition of Assets. The Borrower Borrowers shall not, and shall not suffer or permit any of its Restricted their Subsidiaries to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Asset Sale Property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except:
(a) (i) Asset Sales dispositions of inventory and use of cash, all in the ordinary course Ordinary Course of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets in the ordinary course of business;
Business, (ii) dispositions of used, worn-out or surplus equipment in the concurrent exchange Ordinary Course of a television broadcast station Business, (iii) leasing, subleasing, licensing or sublicensing of long-term Station operating assets intellectual property, or cash (including real or personal property to third parties, in each case, in the Capital Stock Ordinary Course of a Person which owns long-term Station operating assets)Business consistent with past practices, for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection extent not interfering with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the a Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii)Subsidiaries, and (ziv) at least five (5) Business Days prior dispositions of inventory among the Company and its Subsidiaries to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchangeextent permitted by Section 6.6(b);
(Bb) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the dispositions not otherwise permitted hereunder which are made for fair market value and the mandatory prepayment in the amount of the assets so exchangednet proceeds of such disposition is made as provided in Section 2.7; provided, that (2i) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchangeany disposition, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing exist or would shall result therefromfrom such disposition, (Bii) at least seventy-seventy five percent (75%) of the consideration received aggregate sales price from such disposition shall be paid in each such Asset Sale cash, and (or series of related Asset Salesiii) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a aggregate fair market value at the time received that, when taken together with of all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock assets so sold by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted BusinessBorrower and its Subsidiaries, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower)together, shall not exceed fifteen percent in any fiscal year $1,000,000;
(15%c) sales, discounts or write-offs of overdue Accounts for collection in the Operating Ordinary Course of Business consistent with past practices;
(d) sales or other dispositions of Cash Flow for such Reference Period; provided that any Asset Sale Equivalents in the Ordinary Course of Business;
(e) issuances of Equity Interests in the Company (including warrants or options or similar interests) to officers and employees pursuant to a Spectrum Tender shall not be subject to the limitation stock ownership or purchase plan or compensation plan of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries Subsidiaries, to third Persons in the ordinary course extent otherwise permitted pursuant to the terms of business this Agreement; provided that do not interfere in any material respect with the business no issuances shall be permitted while an Event of the Borrower Default has occurred or any of its Restricted Subsidiariesis continuing or would arise as a result therefrom;
(viif) the disposition granting of any Hedge AgreementPermitted Liens;
(viiig) the transfer of assets to the Borrower sales or any other Credit Party pursuant to any other transaction dispositions expressly permitted pursuant to Section 7.4(b)6.3 and dispositions of Investments permitted by Section 6.4;
(ixh) dispositions intercompany transfers of Investments assets in cash and Cash Equivalents;
(A) the transfer by any Credit Party Ordinary Course of its assets to any other Credit PartyBusiness; provided, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined transferred to Foreign Subsidiaries shall not exceed $5,000,000 in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiaryfiscal year;
(xii) (A) the sale issuances of obsolete, worn-out or surplus assets no longer used or usable in the business Equity Interests to qualifying directors of the Borrower or any of its Restricted Subsidiaries Borrowers and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;Subsidiaries; and
(xiij) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements sales or other dispositions of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clausehereunder.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Commercial Vehicle Group, Inc.)
Disposition of Assets. (a) The Borrower shall will not, and shall will not permit any of its Restricted Subsidiaries to, make dispose of all or any Asset Sale except:
part of its interest in any asset, except that the Borrower and its Subsidiaries may sell assets so long as (i) Asset Sales such sales are approved by the Required Banks and the sales price thereof is, in the ordinary course reasonable judgment of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets in the ordinary course of business;
(ii) the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets)Agent, for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of such assets, or (ii) such sales are for at least the fair market value of such assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) and the aggregate amount of all cash such asset sales is less than $100,000 in any 12-month period and, in any such case, the Borrower complies with the mandatory prepayment and Cash Equivalents Commitment reduction provisions of this Agreement and, in the case of Collateral, so long as the conditions to the release of Collateral described herein and in the applicable Security Documents are met, or (iii) such sales are of inventory in the ordinary course of business, (iv) such sales are (A) of obsolete equipment, (B) for at least the fair market value of such equipment, (C) not in excess of $50,000 per year in the aggregate and (D) the proceeds of such sales are used within 90 days of such sales to (1) purchase equipment used in substantially similar lines of business or (2) repay Indebtedness under this Agreement pursuant to Section 3.02 or (v) such sales are of tractors or trailers owned on the date of this Agreement and the aggregate amount of such asset sales is less than $300,000. The consideration received by the Borrower or any Restricted Subsidiary its Subsidiaries from each sale of assets permitted above shall be received in connection whole at the time of sale and at least 70% of the consideration from each sale shall consist of Cash or Cash Equivalents. Any non-cash proceeds received from the sale of assets shall be pledged to the Collateral Agent pursuant to and in accordance with such asset exchanges the applicable Security Documents and shall not exceed thirty-five percent constitute Collateral.
(35%b) Upon compliance with the conditions in subsection (a) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii7.15, the Release Conditions and the Partial Release Conditions (each as hereinafter defined), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide be entitled to receive from the Administrative Collateral Agent (in each case an instrument in form and substance reasonably satisfactory to the Administrative Agent):
Borrower (Aeach, a "Release") releasing the Lien of the Mortgage with respect to all or any portion of a written notification of such exchange describing Mortgaged Real Property (each, a "Released Real Property"). The Borrower shall exercise its rights under this Section by delivering to the assets Collateral Agent a notice (each, a "Release Notice"), which shall refer to be exchanged and this Section, describe with particularity the proposed closing date Released Real Property and be accompanied by (i) four counterparts of the exchange;
Release fully executed and acknowledged by all necessary parties other than Collateral Agent, (Bii) at executed counterparts of UCC or other applicable termination statements necessary to terminate the request Lien of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower applicable Mortgage and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) an Officers' Certificate certifying that no Default or Event of Default shall have occurred and the parties executing any and all documents in connection with the Release (other than the Collateral Agent) were duly authorized to do so (collectively, the "Release Conditions"). In the event the proposed Released Real Property consists of less than all of the Mortgaged Real Property subject to a single Mortgage, the Partial Release Conditions must be continuing or would result therefrom, satisfied in order for the Borrower to receive the Release.
(Bc) at least seventy-five percent The Collateral Agent's obligation to deliver a Release in respect of less than all of the Mortgaged Real Property subject to a single Mortgage shall be contingent upon the satisfaction of the conditions in subsection (75%a) of this Section 7.15 and the consideration received in each Release Conditions as well as the following conditions (collectively, the "Partial Release Conditions"):
(i) following the sale, transfer or other disposition of and release of the Lien of the applicable Mortgage with respect to the proposed Released Real Property, the remaining Mortgaged Real Property shall have utility services and access to public roads, rail spurs and other transportation structures sufficient and necessary for the continued use of such Asset Sale (or series of related Asset Sales) is Mortgaged Real Property in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect manner utilized prior to the applicable Asset Sale); provided further that this clause Release;
(Bii) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to following the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash sale, transfer or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory disposition of the Borrower)proposed Released Real Property, the remaining Mortgaged Real Property shall not exceed fifteen percent comply in all respects with applicable laws, rules, regulations and ordinances relating to environmental protection, zoning, land use, configuration and building and workplace safety;
(15%iii) following the sale, transfer or other disposition of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender proposed Released Real Property, the value of the remaining Mortgaged Real Property shall not be subject less than the value of such remaining Mortgaged Real Property prior to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii)Release;
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior Title Company shall have issued an endorsement to the entry into any Station Sharing Arrangement (or such later time as may be approved by Banks' title insurance policy relating to the Administrative Agent in its sole discretion)Mortgaged Real Property confirming that after the proposed release, the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) Lien of the Operating Cash Flow of applicable Mortgage continues un- impaired as a first priority Lien upon the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable remaining Mortgaged Real Property subject only to Stations that are subject to Station Sharing Arrangements;Prior Liens; and
(v) the sale or discount without recourse by Borrower shall cause to have been delivered to Collateral Agent an Officer's Certificate certifying that the Borrower or any Restricted Subsidiary thereof of accounts receivable arising conditions set forth in the ordinary course of business in connection with the compromise or collection thereof;subsections (i) through (iv) have been satisfied.
(vid) leasesThe Collateral Agent shall execute, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
acknowledge (viiif applicable) the disposition of any Hedge Agreement;
(viii) the transfer of assets and deliver to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
counterparts of the documents described in subsection (ixb)(i) dispositions and (ii) within 30 days after receipt by the Collateral Agent of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (a Release Notice provided that the Release Conditions and the Partial Release Conditions (if applicable) have been satisfied. The Borrower shall (i) execute, deliver, obtain and record such instruments as the Collateral Agent may require, including, without limitation, amendments to the Security Documents or this Agreement and (ii) deliver to the Collateral Agent such evidence of the satisfaction of the Release Conditions and the Partial Release Conditions as the Collateral Agent may require. The Borrower shall reimburse the Collateral Agent, Agent and the Banks upon demand for all costs or expenses incurred in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted actions taken pursuant to this Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause7.15.
Appears in 1 contract
Disposition of Assets. The Borrower shall notnot sell, and shall not permit lease, license, transfer, assign, or otherwise dispose of any part of the Pipeline Assets or of its Restricted Subsidiaries tobusiness or any interest therein, make whether in one or a series of transactions, or otherwise undertake the sale or disposal of any Asset Sale exceptasset, other than:
(a) sales or other dispositions of obsolete, worn out, or defective equipment or equipment or other property or rights no longer necessary to the Operation of the Pipeline; provided that (i) Asset Sales the cumulative book value of the equipment or other property sold or disposed of in connection with any transaction permitted pursuant to this clause (a) shall not exceed five million Dollars ($5,000,000) and (ii) except in the case of obsolete equipment and equipment or other property or rights no longer necessary to the Operation of the Pipeline, such equipment is promptly replaced by the Borrower with suitable substitute equipment of substantially the same character and quality and at least equivalent useful life and utility to the extent that the failure to replace such equipment could reasonably be expected to have a Material Adverse Effect;
(b) sales or other dispositions of equipment or other property in the ordinary course of the business of assets held for resale in the ordinary course of business or the trade in or replacement of assets in the ordinary course of business;
(ii) the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faithBorrower; provided that (vi) at the time of such sale or disposition and after giving effect thereto, no Default or Event of Default then exists or would result therefromexists, (wii) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market cumulative book value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) equipment or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets property sold or disposed of in such proposed Asset Sales and all other Asset Sales made connection with (A) any one transaction permitted pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower b) shall prepay the Loans as provided in Section 2.6(b)(iiinot exceed five million Dollars ($5,000,000) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction all transactions permitted pursuant to Section 7.4(bthis clause (b) in the aggregate shall not exceed ten million Dollars ($10,000,000);
, and (ix) dispositions of Investments in cash and Cash Equivalents;
(Aiii) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any proceeds received from such transfer, such Credit Party shall not pay more than an amount equal sale or disposition are applied promptly to the fair market value replacement of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out sold or surplus assets no longer used or usable in the business disposed property with property of the Borrower or any of its Restricted Subsidiaries same character and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course quality and (2) be required to remain in future compliance with Applicable Laws at least equivalent useful life and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets utility to the extent that the failure to replace such sale equipment could reasonably be expected to have a Material Adverse Effect; and
(c) sales of Permitted Investments for cash or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clausePermitted Investments.
Appears in 1 contract
Disposition of Assets. The Borrower shall Company will not, and shall will not permit any of its Restricted Subsidiaries to, make Subsidiary to Transfer any Asset Sale Property except:
(i) Asset Sales Transfers of inventory and of other Property no longer necessary for the operation of, and that are individually and in the aggregate immaterial to, the business of the Company and the Restricted Subsidiaries, in each case in the ordinary course of business of assets held for resale in the ordinary course of business Company or the trade in or replacement of assets in the ordinary course of businesssuch Restricted Subsidiary;
(ii) Transfers from the concurrent exchange Company to a Wholly-Owned Restricted Subsidiary;
(iii) Transfers from a Restricted Subsidiary to the Company or a Wholly-Owned Restricted Subsidiary;
(iv) Transfers for Acceptable Consideration arising solely out of Sale-Leaseback Transactions, so long as:
(A) the Property is both Transferred and concurrently or thereafter leased by the Company or a television broadcast station Restricted Subsidiary as lessee, in each case within one hundred eighty (180) days after the construction of such Property or the initial acquisition thereof by the Company or a Restricted Subsidiary;
(B) within one hundred eighty (180) days after the Transfer involved in such Sale-Leaseback Transaction, the proceeds of long-term Station operating assets such Transfer, net of reasonable and ordinary transaction costs, expenses and income tax on any gain related to such Transfer incurred and actually paid in connection with such Transfer, are applied by the Company or cash such Restricted Subsidiary to:
(including I) purchase Tangible Property ; or
(II) pay, on or prior to its scheduled maturity, an amount of Debt of the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower Company or any Restricted Subsidiary receives cash, Cash Equivalents (other than Debt owing to an Affiliate or Station operating assets at least equal Debt subordinate to the fair market value Subordinated Notes); and
(C) immediately before and after the consummation of the assets so exchanged as determined by the Borrower in good faith; provided that (v) Transfer, and after giving effect thereto, no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangementsexist;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof other Transfer at any time of accounts receivable arising in the ordinary course of business any Property (other than in connection with the compromise or collection thereof;
(viSale-Leaseback Transactions) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;a Person for an Acceptable Consideration if:
(A) the transfer by any Credit Party of its assets to any other Credit Party, sum of:
(BI) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market book value of such assets as determined in good faith Property at the time of such transfer) and Transfer; plus
(CII) the transfer by any Non-Guarantor Subsidiary aggregate book value of its assets to any all other Non-Guarantor Subsidiary;
Property Transferred (xiother than in Excluded Transfers) (A) after the sale of obsolete, worn-out or surplus assets no longer used or usable in Fiscal Year End Date immediately preceding the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) date of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseTransfer;
Appears in 1 contract
Samples: Note Agreement (Fresh America Corp)
Disposition of Assets. The Borrower No Credit Party nor any Restricted Subsidiary shall notdissolve, and shall not permit liquidate or sell, transfer, convey, assign or otherwise dispose of any of its Restricted Subsidiaries toproperties or other assets, make including any Asset Sale exceptCapital Stock of any of its Subsidiary (whether in a public or a private offering or otherwise), any of its receivables or any of its other investments, other than:
(i) Asset Sales in the ordinary course sale of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets inventory in the ordinary course of business;
(ii) the concurrent exchange dispositions of a television broadcast station or of long-term Station operating assets or cash among Credit Parties (including the other than Capital Stock of Subsidiaries);
(iii) dispositions of obsolete or worn out equipment or fixtures no longer useful in the business, whether now owned or hereafter acquired, in the ordinary course of business;
(iv) termination of a Person which owns long-term Station operating assets)lease of real or personal property that is not necessary for the ordinary course of business, for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal could not reasonably be expected to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that have a Material Adverse Effect and does not result from a Credit Party’s default;
(v) so long as no Default or Event of Default then exists is continuing or would result therefrom, (w) sales of equipment now owned or hereafter acquired by any Credit Party or a Restricted Subsidiary, the aggregate amount fair market value or book value of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges which shall not exceed thirty$500,000 in the aggregate;
(vi) non-five percent exclusive licenses of Intellectual Property in the ordinary course of business (35%) other than to the extent such licenses would restrict the ability of the aggregate consideration for such asset exchangeCredit Party, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower a Restricted Subsidiary or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to sell or license the subject Intellectual Property or impair the security interests granted to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange);
(Bvii) at the request any sale, transfer or other disposition of all Capital Stock of the Administrative Agent (in its sole discretion)Xxxx and Xxxxxxxx Entities, a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value all or substantially all of the assets so exchangedof the Xxxx and Xxxxxxxx Entities; provided, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 that prior to and after giving effect to any such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchangetransaction, and (3) certifying that no Default or Event of Default exists or would shall have occurred and be caused by such exchangecontinuing; and
(Cviii) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be is continuing or would result therefrom, therefrom and (B) at least seventy-five percent (75%) % of the total consideration received in each of such Asset Sale (or series of related Asset Sales) sale is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include (in each case, free and clear of all Liens at the time received, other than non-consensual Liens permitted pursuant to Section 7.03), sales of other assets of any Credit Party or their Restricted Subsidiaries for fair market value; provided, however, that for purposes of clause (B) of this clause (viii), any Designated Non-Cash Consideration having a received by such Credit Party or Restricted Subsidiary from such sale shall be deemed to constitute cash so long as the aggregate fair market value thereof (measured at the time received thatsuch Designated Non-Cash Consideration is received), when taken together with all other Designated Non-Cash Consideration previously received and then outstandingpursuant to this proviso since the Closing Date, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause5,000,000.
Appears in 1 contract
Disposition of Assets. The Borrower shall not, and shall not permit directly or indirectly, sell, lease, abandon or otherwise transfer or dispose of any of its Restricted Subsidiaries toassets or property of any nature (including, make without limitation, the sale of any Asset Sale Collateral and any sale-leaseback or similar transaction), whether now owned or hereafter acquired, except:
(ia) Asset Sales sales of inventory in the ordinary course of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets in the ordinary course of its business;
(iib) the concurrent exchange transfers of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall property not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets constituting Collateral to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b)a wholly-owned Subsidiary of the Borrower;
(ixc) dispositions trade-ins of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable equipment for new equipment useful in the business of the Borrower or any of its Restricted Subsidiaries and (B) Subsidiaries; provided that if the forfeiture or surrender of assets determined by property so transferred is Collateral, the Borrower in good faith to (1) no longer be necessary Bank shall have a perfected first priority security interest in the conduct of its business in the ordinary course and (2) be required new equipment subject to remain in future compliance with Applicable Laws and final orders of the FCCno Liens other than Permitted Liens;
(xiid) Asset Sales sales or dispositions of equipment (other than Collateral) which is obsolete or no longer used or useful in connection with insurance and condemnation proceedings; provided that the requirements business of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries Subsidiaries, with a fair market value not exceeding $3,000,000 in the aggregate in any fiscal year;
(e) transfers of assets to the extent that such sale or other disposition is required by Applicable Laws or final order property of the FCCBorrower or any of its Subsidiaries with a fair market value up to $5,000,000 in any fiscal year in like-kind exchanges pursuant to Section 1031 of the Code; provided that at least seventy-five percent if the property so transferred is Collateral, the Bank shall have a perfected first priority security interest in the in the acquired property subject to no Liens other than Permitted Liens;
(75%f) sales or dispositions of the consideration received assets of the Borrower or any of its Subsidiaries (other than Collateral) not in the ordinary course of business with a fair market value not to exceed $1,000,000 in the aggregate in any fiscal year;
(g) transfers of assets or property constituting Investments in Permitted Joint Ventures;
(h) transfers of equipment (other than Collateral) in connection with sale-leaseback transactions provided that (i) in each case, the equipment subject to such Asset Sale transaction has an invoice date within one year of the date of such transfer, and (or series ii) the sales price of related Asset Sales) is all such equipment shall not exceed $10,000,000 in the form aggregate during the term of cash this Agreement;
(i) other sales or Cash Equivalents transfers of real property not in excess of Five Million and the Net Proceeds 00/100 Dollars (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause$5,000,000.00).
Appears in 1 contract
Disposition of Assets. The Borrower shall not, and shall not suffer or permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise permit a Disposition of (whether in one or a series of transactions) any Asset Sale exceptproperty (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except the following transactions to the extent they are arms-length transactions with Persons who are not Affiliates of the Borrower or its Subsidiaries for pricing reflecting the fair market value of any assets or property being sold:
(ia) Asset Sales in the ordinary course Dispositions of business of assets held for resale in the ordinary course of business inventory, or the trade in used, worn-out or replacement of assets surplus equipment, all in the ordinary course of business;
(iib) the concurrent exchange sale of a television broadcast station or of long-term Station operating assets or cash (including equipment in the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal ordinary course and in accordance with past practices to the fair market value extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the assets so exchanged as determined by the Borrower proceeds of such sale are reasonably promptly (and in good faith; provided that any event within ninety (v90) no Default or Event days of Default then exists or would result therefrom, (wsuch sale) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion purchase price of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchangereplacement equipment;
(Bc) at the request of the Administrative Agent Dispositions (in its sole discretion), a certificate, executed other than by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower MK Gain and its Restricted Subsidiaries is at least equal to the Subsidiaries) not otherwise permitted hereunder which are made for fair market value of the assets so exchangedvalue; provided, that (2i) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchangeany Disposition, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing exist or would shall result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepaymentDisposition, (ii) without regard to the aggregate sales price from such Disposition shall be paid in cash, and (iii) the aggregate value of all assets so sold by the Borrower and its Subsidiaries, together, shall not exceed the lesser of (i) $3,000,000 in any thresholds or reinvestment provisions Fiscal Year (plus the amount of the proceeds from the sale of the Borrower's Mountaintop, PA facility during the Fiscal Year it is sold, if ever) and (ii) $10,000,000 in Section 2.6(b)(iii);the aggregate during the term of the Agreement; and
(ivd) Asset Sales Dispositions by MK Gain and its Subsidiaries of assets with a value not in the form excess of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten twenty percent (1020%) of the Operating Cash Flow aggregate value of the Borrower assets of MK Gain and its Restricted SubsidiariesSubsidiaries (on a consolidated basis) as shown on MK Gain's consolidated financial statements in any Fiscal Year, and in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof event not in excess of accounts receivable arising $20,000,000 in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseaggregate.
Appears in 1 contract
Disposition of Assets. The Borrower Borrowers shall not, and shall not permit any of its the Restricted Subsidiaries to, make at any Asset Sale except:
time sell, lease, abandon, or otherwise dispose of any assets (i) Asset Sales in the ordinary course other than assets disposed of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets in the ordinary course of business;
) without the prior written consent of the Majority Lenders; provided, however, that the prior written consent of the Lenders shall not be required for (i) the transfer of assets (including cash or cash equivalents) among the Borrowers and the Restricted Subsidiaries (excluding Subsidiaries of such Persons described in clause (b) of the definition of “Subsidiary”) or the transfer of assets (including cash or cash equivalents) between or among Restricted Subsidiaries (excluding Subsidiaries of such Persons described in clause (b) of the definition of “Subsidiary”) or (ii) the concurrent exchange disposition of a television broadcast station or assets (A) in any quarter that contribute, in the aggregate, together with all other assets disposed of long-term Station operating assets or cash during such quarter less than fifteen percent (including the Capital Stock 15%) of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Annualized Operating Cash Equivalents or Station operating assets at least equal to the fair market value Flow of the Borrowers and the Restricted Subsidiaries as of the calendar quarter end immediately preceding such disposition and (B) after April 1, 2004, that contribute, in the aggregate, together with all other assets so exchanged as determined by disposed of since April 1, 2004, Operating Cash Flow (Towers) and Operating Cash Flow (Other Business) of the Borrower in good faith; provided that (v) no Default or Event Borrowers and the Restricted Subsidiaries for the period from April 1, 2004 through the end of Default then exists or would result therefromthe calendar quarter immediately preceding such disposition, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirtyless than twenty-five percent (3525%) of the aggregate consideration for such asset exchange, total Operating Cash Flow (xTowers) the aggregate amount of all cash and Operating Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent Flow (35%Other Business) of the aggregate amount paid or transferred by Borrowers and the Borrower or any of its Restricted Subsidiaries in connection with for the period from April 1, 2004 through the end of the calendar quarter immediately preceding such asset exchangedisposition; provided, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii)further, and (z) at least five (5) Business Days prior to the completion of such exchangehowever, the Borrower shall provide to the Administrative Agent (that, in each case in form and substance reasonably satisfactory to the Administrative Agent):
under clause (Aii) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion)hereof, a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would and none shall be caused by such exchange; and
(C) such other additional financial information to occur as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including a result thereof. Upon any Asset Sale pursuant to sale or disposition of a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion)permitted hereunder, the Administrative Agent shall have receivedand the Lenders shall, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into Borrowers’ expense, take such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of actions as the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable Borrowers reasonably request to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any cause such Restricted Subsidiary thereof of accounts receivable arising in to be released from its obligations under the ordinary course of business in connection with the compromise or collection thereof;Loan Documents to which it is a party.”
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to I. Section 7.4(b7.6(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause.
Appears in 1 contract
Samples: Notice of Incremental Facility Commitment (American Tower Corp /Ma/)
Disposition of Assets. The Borrower None of the Borrowers shall, or shall not, and shall not suffer or permit any of its Restricted Subsidiaries Subsidiary to, make directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Asset Sale property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except:
(ia) Asset Sales in the ordinary course dispositions of business of assets held for resale in the ordinary course of business inventory, or the trade in used, worn-out or replacement of assets surplus property, all in the ordinary course of business;
(iib) the concurrent exchange sale of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal equipment to the fair market value extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment, or the assets so exchanged as determined proceeds of such sale are reasonably promptly applied to the purchase price of such replacement equipment;
(c) dispositions of Receivables of Toro to Red Iron and, to the extent TCC has become a Borrower hereunder pursuant to Section 2.17, TCC;
(d) dispositions by the Borrower in good faith; any Originator of Receivables pursuant to Receivables Purchase Facilities provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate outstanding unpaid amount of all cash such Receivables so sold in the aggregate shall not at any time exceed $125,000,000 and Cash Equivalents received such Receivables Purchase Facilities may be established only at a time when Toro has a Debt Rating by the Borrower S&P of BBB- or better or by Xxxxx’x of Baa3 or better;
(e) disposition of receivables at any Restricted Subsidiary time of Toro’s Micro Irrigation division in an amount not to exceed $30,000,000, whether pursuant to a securitization facility, a factoring arrangement or other manner of monetization thereof;
(f) dispositions in connection with such asset exchanges shall not exceed thirty-five percent (35%the making or sale of those Investments described under Section 7.04(a) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent the making of those Investments described in Sections 7.04(c) through (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iiij);
(ivg) Asset Sales in the form of Station Sharing Arrangementsdispositions not otherwise permitted hereunder which are made for fair market value; provided provided, that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (Bi) at the time of entering into any such Station Sharing Arrangement disposition, no Event of Default shall exist or shall result from such disposition and (ii) the aggregate value of all assets so sold by Toro and after giving effect thereto) no more than ten percent (its Subsidiaries shall not exceed in any fiscal year 10%) % of the Operating Cash Flow consolidated total assets of Toro and its Subsidiaries determined as of the Borrower and its Restricted Subsidiaries, in each case determined for end of the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangementsmost recently ended fiscal quarter of Toro;
(vh) the sale or discount without recourse by the Borrower Toro or any Restricted Subsidiary, including any Subsidiary thereof Borrower, may sell, assign, lease, convey, transfer or otherwise dispose of accounts receivable arising assets to one of the Borrowers or another Wholly-Owned Subsidiary;
(i) dispositions or transfers of cash in payment for goods or services in the ordinary course of business to the extent not otherwise prohibited hereunder;
(j) dispositions resulting from any casualty or condemnation;
(k) dispositions in connection with Restricted Payments permitted under Section 7.07;
(l) dispositions in connection with the compromise or collection thereof;granting of Permitted Liens; and
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ixm) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall the payment of Contingent Obligations or Indebtedness not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseotherwise prohibited hereunder.
Appears in 1 contract
Samples: Credit Agreement (Toro Co)
Disposition of Assets. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, make any Asset Sale except:
(i) Asset Sales in the ordinary course of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets in the ordinary course of business;
(ii) the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets television stations at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faithboard of directors of the Borrower; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-twenty five percent (3525%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchangemust be permitted under Section 7.6, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the board of directors has determined that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching calculations evidencing that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (3) attaching any other information considered by the board of directors and evidencing the board of directors’ analysis of the attached calculations in making the determination that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (4) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 7.8 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or and (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, (5) attaching financial projections for the Borrower for a five (5) year period after the closing of such exchange after giving effect to such exchange and (36) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information documentation as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender)which do not exceed $25,000,000 in the aggregate per fiscal year, so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash Equivalents and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) proceeds of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case aggregate amount of any cash or Cash Equivalents that are received by the Borrower or any Subsidiary pursuant to an Asset Sale pursuant to a Spectrum Tender that results made during such fiscal year and permitted under Section 7.4(a)(ii) shall be included in determining the First Lien Leverage Ratio, calculated after giving pro forma effect to such amounts of Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Sales permitted under this Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii7.4(a)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion)Arrangement, the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to each of the definitive documents governing such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(x) (A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such new transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;Subsidiaries; and
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clause.
Appears in 1 contract
Disposition of Assets. The Borrower shall notSell or otherwise dispose of any assets (including, and shall not permit without limitation, the capital stock of any of its Restricted Subsidiaries to, make Subsidiary or any Asset Sale except:
copyrights or intellectual property) except for (i) Asset Sales in the ordinary course sales of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets Inventory, leases, fixtures and equipment in the ordinary course of business;
, (ii) sales of the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), set forth on Schedule 6.12 hereto for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance on terms reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged Agent and the proposed closing date Required Banks, (iii) sales or dispositions among any of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by Guarantors and the Borrower and its Restricted Subsidiaries is at least equal to the (iv) other sales of assets having a fair market value of not exceeding $500,000 in the assets so exchangedaggregate, provided, as to clauses (ii), (2iii) attaching financial calculations specifically demonstrating either and (xiv) the Borrower’s pro forma compliance with of this Section 7.7 6.12 that after giving effect to any such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchangetransaction, and (3) certifying that no Default or Event of Default exists or event which with the giving of notice or lapse of time, or both, would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or become an Event of Default shall have occurred and be continuing or would result therefromcontinuing, provided, further, that with respect to clause (Bii) at least seventy-five percent above, upon the execution of a "claw back" agreement among the Agent, the Banks and the Existing Lenders in form and substance satisfactory to the Agent and the Banks in the exercise of their sole discretion (75%) the "Claw Back Agreement"), the Banks shall consent to the payment of the consideration received in each such Asset Sale Net Cash Proceeds of sales of assets listed on Schedule 6.12 hereto (or series of related Asset Salesother than with respect to Indi and the Red Ant Entities) is in for application to amounts outstanding under the form of cash or Cash Equivalents; Existing Agreements, provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 that with respect to the sale or other liquidation of the Red Ant Entities, the Borrower shall promptly apply the Net Cash Proceeds thereof to any Loans then outstanding and (y) one percent (1.0%) the Borrower shall apply an amount equal to 25% of Consolidated Total Assets (calculated at the time of receipt Net Cash Proceeds thereof to the principal under the Existing Agreements on December 31, 1997 and an additional amount equal to 25% of such Designated Non-Net Cash Consideration and determined after giving effect Proceeds thereof to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to principal under the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted BusinessExisting Agreements on March 31, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale 1998 (or series if the sale or other liquidation of related Asset Sales) are applied orIndi shall have occurred subsequent to December 31, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.001997, the Borrower shall prepay have applied an amount equal to 50% of the Net Cash Proceeds thereof to the principal under the Existing Agreements on March 31, 1998), it being understood that, prior to any required repayment hereunder with respect to the sale of Indi, the Borrower shall be permitted to use the Net Cash Proceeds thereof for working capital purposes not inconsistent with the terms of this Agreement, provided, that in the event that, upon the Termination Date, there exist any Loans as provided in Section 2.6(b)(iii) or Letters of Credit outstanding, each of the Existing Lenders shall, within two Business Days of receipt of notice from the Agent, remit their pro-rata share of the aggregate amount of Loans outstanding and amounts necessary to cash collateralize outstanding Letters of Credit in an amount equal to 100105% of the face amount of outstanding Letters of Credit in immediately available funds. Any such amounts which are not paid by any Existing Lender when due shall accrue interest at the rates provided for in Section 2.8 but the aggregate amount paid by any Lender shall not exceed the aggregate amount of Net Cash Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect paid to such prepayment) without regard Existing Lender. The Borrower hereby agrees that, to the extent any thresholds or reinvestment provisions amounts are remitted to the Banks pursuant to the Claw Back Agreement, the claims of the Existing Lenders shall be reinstated in Section 2.6(b)(iii);
(iv) Asset Sales a like amount. All assignments of pre-petition interests and claims under the Existing Agreements shall, in addition to existing provisions, require the consent of the Agent in the form exercise of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), . Notwithstanding anything to the Administrative Agent shall have receivedcontrary contained in this Section 6.12, in form and substance reasonably satisfactory to the Administrative Agent, absence of the execution of a copy of any Shared Services Claw Back Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time all Net Cash Proceeds of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in set forth on Schedule 6.12 (other than the business sale of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer Red Ant Entities, which shall be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) applied to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xivLoans as provided above) shall be deposited into an interest-bearing segregated escrow account with the sale or other disposition by Agent as collateral security for the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseObligations.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Alliance Entertainment Corp)
Disposition of Assets. The Borrower shall will not, and shall will not permit any of its Restricted Subsidiaries to, make Dispose of any Asset Sale Capital Stock owned or held by the Borrower or such Subsidiary, as applicable (excluding Capital Stock that is not Disqualified Capital Securities but including any Capital Stock of any of its Subsidiaries) or any other Assets, except:
(ia) Asset Sales in the ordinary course Dispositions of business of assets held for resale in the ordinary course of business or the trade in or replacement of assets Hydrocarbons and other inventory in the ordinary course of business;
(iib) the concurrent exchange Dispositions of a television broadcast station obsolete, damaged, worn out or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (v) no Default or Event of Default then exists or would result therefrom, (w) the aggregate amount of all cash replaced property and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 after giving effect to such exchange (regardless of whether a Suspension Period is in effect at the time of such exchange) or (y) that the pro forma Leverage Ratio after giving effect to such exchange shall not be greater than the Leverage Ratio immediately prior to giving effect to such exchange, and (3) certifying that no Default or Event of Default exists or would be caused by such exchange; and
(C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (after giving effect to such prepayment) without regard to any thresholds or reinvestment provisions in Section 2.6(b)(iii);
(iv) Asset Sales in the form of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to the entry into any Station Sharing Arrangement (or such later time as may be approved by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (B) at the time of entering into such Station Sharing Arrangement (and after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising dispositions in the ordinary course of business of property no longer used or useful in the conduct of the business of the Obligors;
(c) Dispositions of Assets from any Obligor to any other Obligor;
(d) Dispositions of Oil and Gas Properties (including volumetric production payments), or Dispositions of any Obligor owning Oil and Gas Properties, provided that, if such Disposition is of Oil and Gas Properties included in the most recently delivered Reserve Report and if the fair market value of Dispositions made pursuant to this clause (d) during any period between two successive redeterminations of the Borrowing Base pursuant to Section 2.8.2 or 2.8.3 exceeds five percent (5%) of the then effective Borrowing Base, individually or in the aggregate, the Borrowing Base shall be reduced, effective immediately upon such Disposition, by an amount equal to the Borrowing Base Value of such Oil and Gas Properties;
(e) Farmouts of undeveloped acreage and assignments in connection with the compromise or collection thereofsuch farmouts;
(vif) leasesDispositions 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;
(g) Leases, subleases, easements licenses or licenses granted by sublicenses (including the Borrower provision of software or any the licensing of its Restricted Subsidiaries to third Persons other intellectual property rights), in each case 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 of its Restricted Subsidiaries;and the other Obligors, taken as a whole; and
(viih) the disposition Dispositions of any Hedge Agreement;
Assets (viiiother than Hydrocarbon Interests) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the having a fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets not to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsoleteexceed $1,000,000, worn-out or surplus assets no longer used or usable in the business of aggregate after the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clauseEffective Date.
Appears in 1 contract
Disposition of Assets. The Borrower shall will not, and shall will not ---------------------- permit any of its Restricted Subsidiaries to, make become a party to or agree to or effect any Asset Sale except:
(i) Asset Sales disposition of assets, other than the sale of lots, homes and VOI's, in each case in the ordinary course of business consistent with past practices, without the prior written approval of the Majority Banks, except as set forth below:
(i) The Borrower or such Subsidiary may sell or substitute assets held so long as (a) such sales are for resale cash to unrelated third parties in an arms length transaction, (b) such assets are not, and are not intended to be, Collateral, (c) the proceeds of each such sale are deposited in the ordinary course BKB Concentration Account, and applied in accordance with the provisions of business or the trade in or replacement of assets in the ordinary course of business;
ss.2.10, and (ii) the concurrent exchange of a television broadcast station or of long-term Station operating assets or cash (including the Capital Stock of a Person which owns long-term Station operating assets), for which the Borrower or any Restricted Subsidiary receives cash, Cash Equivalents or Station operating assets at least equal to the fair market value of the assets so exchanged as determined by the Borrower in good faith; provided that (vd) no Default or Event of Default then exists has occurred and is continuing, or would result therefrom, (w) the aggregate amount of all cash and Cash Equivalents received by the Borrower or any Restricted Subsidiary in connection with such asset exchanges shall not exceed thirty-five percent (35%) of the aggregate consideration for such asset exchange, (x) the aggregate amount of all cash and Cash Equivalents paid by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange shall not exceed thirty-five percent (35%) of the aggregate amount paid or transferred by the Borrower or any of its Restricted Subsidiaries in connection with such asset exchange, (y) any cash or Cash Equivalents that are received by the Borrower or any Subsidiary in connection with any asset exchange pursuant to this Section 7.4(a)(ii) shall be applied pursuant to Section 2.6(b)(iii), and (z) at least five (5) Business Days prior to the completion of such exchange, the Borrower shall provide to the Administrative Agent (in each case in form and substance reasonably satisfactory to the Administrative Agent):
(A) a written notification of such exchange describing the assets to be exchanged and the proposed closing date of the exchange;
(B) at the request of the Administrative Agent (in its sole discretion), a certificate, executed by an Authorized Signatory of the Borrower, (1) certifying that the property or other consideration received by the Borrower and its Restricted Subsidiaries is at least equal to the fair market value of the assets so exchanged, (2) attaching financial calculations specifically demonstrating either (x) the Borrower’s pro forma compliance with Section 7.7 occur after giving effect to such exchange disposition.
(regardless ii) FMB and the VB Originating Subsidiaries may sell or substitute Base Contracts and beneficial interests in VOIs and Lots underlying such Base Contracts to the Borrower, and the Borrower may sell or substitute Base Contracts and beneficial interests in VOIs and Lots underlying such Base Contracts to FAC, and FAC may sell or substitute Base Contracts and beneficial interests in VOIs and Lots underlying such Base Contracts to FCC, FRC and FFC, provided that (a) the terms of whether a Suspension Period is each such sale are no less ------------- favorable than those contained in effect at the time of such exchangeOperating Agreement (with respect to sales from FMB and the VB Originating Subsidiaries to the Borrower and sales from the Borrower to FAC) or the Receivables Purchase Agreements (y) that the pro forma Leverage Ratio after giving effect with respect to such exchange shall not be greater than the Leverage Ratio immediately prior sales from FAC to giving effect to such exchangeFCC, FRC and FFC), and (3b) certifying that no Default the proceeds of each such sale are deposited in the BKB Concentration Account and applied in accordance with the provisions of ss.2.10 or Event of Default exists or would be caused ss.2.11, as applicable, or, if such sale is by such exchange; and
FAC and the FAC Credit Agreement is still in force and effect, as required by the FAC Credit Agreement, and (C) such other additional financial information as the Administrative Agent shall reasonably request;
(iii) other Asset Sales (including any Asset Sale pursuant to a Spectrum Tender), so long as (Ac) no Default or Event of Default shall have has occurred and be continuing or is continuing, or would result therefrom, (B) at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents; provided that cash and Cash Equivalents shall include any Designated Non-Cash Consideration having a fair market value at the time received that, when taken together with all other Designated Non-Cash Consideration previously received and then outstanding, does not exceed the greater of (x) $75,000,000 and (y) one percent (1.0%) of Consolidated Total Assets (calculated at the time of receipt of such Designated Non-Cash Consideration and determined after giving effect to the applicable Asset Sale); provided further that this clause (B) shall not apply to any issuance of Capital Stock by a non-wholly owned Restricted Subsidiary to the non-Affiliate owner(s) of such Restricted Subsidiary in consideration of a contribution primarily consisting of cash or assets used or useful in a Permitted Business, (C) the portion of Operating Cash Flow for the most recent Reference Period that is attributable to the assets sold or disposed of in such proposed Asset Sales and all other Asset Sales made pursuant to this Section 7.4(a)(iii) during the immediately preceding 12-month period (such portion to be determined by the Borrower in good faith, without giving effect to any such Asset Sales and, if requested by the Administrative Agent, certified by an Authorized Signatory of the Borrower), shall not exceed fifteen percent (15%) of the Operating Cash Flow for such Reference Period; provided that any Asset Sale pursuant to a Spectrum Tender shall not be subject to the limitation of this clause (C) and shall not be taken into account in determining whether the percentage of Operating Cash Flow specified in this clause (C) has been exceeded, and (D) the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or, subject to the proviso to this clause (D), reinvested, as the case may be, pursuant to Section 2.6(b)(iii); provided that in the case of any Asset Sale pursuant to a Spectrum Tender that results in the First Lien Leverage Ratio, calculated after giving pro forma effect to such Asset Sale, being greater than 3.25 to 1.00, the Borrower shall prepay the Loans as provided in Section 2.6(b)(iii) in an amount equal to 100% of such Net Proceeds (Asset Sales), or if less, an amount necessary to cause such First Lien Leverage Ratio to be less than or equal to 3.25 to 1.00 (occur after giving effect to such prepaymentdisposition.
(iii) without regard The Borrower or its Subsidiaries may sell Base Contracts and beneficial interests in VOIs and Lots underlying such Base Contracts to any thresholds unrelated third parties provided that (a) each such sale is for cash, (b) ------------- the purchase price of the Base Contracts sold shall not be less than 80% of the principal components of such Base Contracts plus all accrued and unpaid interest on such Base Contracts, (c) the proceeds of each such sale are deposited in the BKB Concentration Account and applied in accordance with the provisions of ss.2.10 or reinvestment provisions ss.2.11, as applicable, or, if such sale is by FAC and the FAC Credit Agreement is still in Section 2.6(b)(iii);force and effect, as required by the FAC Credit Agreement, and (d) no Default or Event of Default has occurred or is continuing, or would occur after giving effect to such disposition.
(iv) Asset Sales The Borrower or its Subsidiaries may sell Base Contracts and beneficial interests in VOIs and Lots underlying such Base Contracts to special-purpose bankruptcy-remote Subsidiaries of FAC (other than FCC, FRC and FFC) pursuant to Securitizations permitted by ss.9.1(g), provided that ------------
(a) the cash portion of the purchase price of the Base Contracts sold shall not be less than 80% of the principal components of such Base Contracts plus all accrued and unpaid interest on such Base Contracts, (b) the cash proceeds of such sale are deposited in the form BKB Concentration Account and applied in accordance with the provisions of Station Sharing Arrangements; provided that (A) at least five (5) Business Days prior to ss.2.10 or ss.2.11, as applicable, or, if such sale is by FAC and the entry into any Station Sharing Arrangement (or such later time FAC Credit Agreement is still in force and effect, as may be approved required by the Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a copy of any Shared Services FAC Credit Agreement, Joint Sales Agreement, Local Marketing Agreement, option agreement, put/call agreement, management services agreement and any other material agreement or document with respect to such Station Sharing Arrangement and (Bc) at the time no Default or Event of entering into such Station Sharing Arrangement (Default has occurred and is continuing, or would occur after giving effect thereto) no more than ten percent (10%) of the Operating Cash Flow of the Borrower and its Restricted Subsidiaries, in each case determined for the then applicable Reference Period, shall be attributable to Stations that are subject to Station Sharing Arrangements;
(v) the sale or discount without recourse by the Borrower or any Restricted Subsidiary thereof of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof;
(vi) leases, subleases, easements or licenses granted by the Borrower or any of its Restricted Subsidiaries 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;
(vii) the disposition of any Hedge Agreement;
(viii) the transfer of assets to the Borrower or any other Credit Party pursuant to any other transaction permitted pursuant to Section 7.4(b);
(ix) dispositions of Investments in cash and Cash Equivalents;
(A) the transfer by any Credit Party of its assets to any other Credit Party, (B) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any such transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer) and (C) the transfer by any Non-Guarantor Subsidiary of its assets to any other Non-Guarantor Subsidiary;
(xi) (A) the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Restricted Subsidiaries and (B) the forfeiture or surrender of assets determined by the Borrower in good faith to (1) no longer be necessary in the conduct of its business in the ordinary course and (2) be required to remain in future compliance with Applicable Laws and final orders of the FCC;
(xii) Asset Sales in connection with insurance and condemnation proceedings; provided that the requirements of Section 2.6(b)(iii) are complied with in connection therewith;
(xiii) to the extent constituting Asset Sales, mergers, consolidations and liquidations permitted pursuant to Section 7.4(b), Restricted Payments permitted pursuant to Section 7.6, Investments permitted pursuant to Section 7.5 and Liens permitted pursuant to Section 7.2;
(xiv) the sale or other disposition by the Borrower or any of its Restricted Subsidiaries of assets to the extent that such sale or other disposition is required by Applicable Laws or final order of the FCC; provided that at least seventy-five percent (75%) of the consideration received in each such Asset Sale (or series of related Asset Sales) is in the form of cash or Cash Equivalents and the Net Proceeds (Asset Sales) of such Asset Sale (or series of related Asset Sales) are applied or reinvested, as the case may be, pursuant to Section 2.6(b)(iii) (it being understood and agreed that nothing in this clausedisposition.
Appears in 1 contract
Samples: Revolving Credit Agreement (Fairfield Communities Inc)
