Dispositions of Assets or Subsidiaries. The Borrower shall not, and shall not permit any of its Subsidiaries to, sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or general intangibles with or without recourse or of capital stock, shares of beneficial interest or partnership interests of a Subsidiary of the Borrower), except: (i) transactions involving the sale of inventory in the ordinary course of business; (ii) any sale, transfer or lease of assets in the ordinary course of business which are no longer necessary or required in the conduct of the Borrower’s business; (iii) any sale, transfer or lease of assets by any Subsidiary of the Borrower to the Borrower or another Loan Party; (iv) any sale, transfer or lease of assets in the ordinary course of business which are replaced by substitute assets acquired or leased; (v) any sale, transfer, or lease of assets the after-tax proceeds of which, when added to the after-tax proceeds of other sales, transfers and leases of assets in the same fiscal year, do not exceed, in the aggregate for Borrower and its Subsidiaries, 5% of Borrower’s consolidated total assets at the start of such fiscal year; (vi) the sale of receivables by the Subsidiaries of Borrower to Citibank, N.A. or General Electric Capital Corporation - Trade Payables Services Division under the arrangements set forth on Schedule 1.1(P) [Permitted Liens]; provided that the amount of outstanding receivables sold under such arrangements shall not at any time exceed $5,000,000 in the aggregate; and (vii) any sale, transfer or lease of assets, other than those specifically excepted pursuant to clauses (i) through (vi) above, which is approved by (1) the Required Banks if no Security Event exists and is continuing and (2) all Banks if a Security Event exists and is continuing.
Appears in 1 contract
Dispositions of Assets or Subsidiaries. The Borrower Company shall not, and shall not permit any of its Subsidiaries to, sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or general intangibles with or without recourse or of capital stock, shares of beneficial interest or partnership interests Equity Interests of a Subsidiary of the BorrowerCompany or such Subsidiary), except:
(ia) transactions involving the sale of inventory in the ordinary course of business;
; (iib) any sale, transfer or lease of assets in the ordinary course of business which are no longer necessary or required in the conduct of the BorrowerCompany’s or such Subsidiary’s business;
; (iiic) any sale, transfer or lease of assets by any Subsidiary of the Borrower to the Borrower Company or to another Loan Party;
(iv) any Subsidiary at the time of such sale, transfer or lease lease; (d) transactions involving transfers of assets cash and cash equivalents in the ordinary course of business which are replaced by substitute assets acquired or leased;
business; (ve) any sale, transfer, or lease of assets the after-tax proceeds of which, when added to the after-tax proceeds of other sales, transfers and leases of assets in the same fiscal year, do not exceed, in the aggregate for Borrower and its Subsidiaries, 5% of Borrower’s consolidated total assets at the start of such fiscal year;
(vi) the sale of receivables by the Subsidiaries of Borrower to Citibank, N.A. or General Electric Capital Corporation - Trade Payables Services Division under the arrangements set forth on Schedule 1.1(P) [Permitted Liens]; provided that the amount of outstanding receivables sold under such arrangements shall not at any time exceed $5,000,000 in the aggregate; and
(vii) any sale, transfer or lease of assets, other than those not specifically excepted permitted pursuant to clauses (ia) through (vid) above; provided, which is approved by however, that the aggregate amount of the book value of the assets subject to all such sales, transfers and leases under this clause (1e) in any fiscal year of the Required Banks if no Security Event exists and is continuing and Company shall not exceed 15% of Consolidated Total Assets (2) all Banks if a Security Event exists and is continuing.determined as of the end of the then most recently ended fiscal year of the Company); provided, further
Appears in 1 contract
Dispositions of Assets or Subsidiaries. The Borrower shall not, and shall not permit any of its Subsidiaries the other Loan Parties to, sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including but not limited to sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or general intangibles with or without recourse or of capital stock, shares of beneficial interest or partnership interests of a Subsidiary of the BorrowerSubsidiary), except:
(i) transactions involving the sale of inventory in the ordinary course of business;
(ii) any sale, transfer or lease of assets in the ordinary course of business which are no longer necessary or required in in, or which are not material to, the conduct of the Borrower’s 's or such Subsidiary's business;
(iiiii) any sale, transfer or lease of assets by any Subsidiary of the Borrower wholly-owned Loan Party to the Borrower or another any other wholly owned Loan Party (or by the Borrower to a wholly owned Loan Party);
(iviii) any sale, transfer or lease of assets in the ordinary course of business which are replaced by substitute assets acquired or leasedleased within the parameters of Section 8.02(p) provided such substitute assets are subject to the Banks' Prior Security Interest;
(viv) any sale, transfer, sale or lease transfer of assets which are obsolete or no longer used or useful in the after-tax proceeds business of which, when added to the after-tax proceeds of other Borrower or its Subsidiaries; provided that such sales, transfers and leases of assets in the same fiscal year, do or dispositions shall not exceed, in any fiscal year, $1 million in the aggregate for the Borrower and its Subsidiaries, 5% of Borrower’s consolidated total assets at the start of such fiscal year;; or
(vi) the sale of receivables by the Subsidiaries of Borrower to Citibank, N.A. or General Electric Capital Corporation - Trade Payables Services Division under the arrangements set forth on Schedule 1.1(P) [Permitted Liens]; provided that the amount of outstanding receivables sold under such arrangements shall not at any time exceed $5,000,000 in the aggregate; and
(viiv) any sale, transfer or lease of assets, other than those specifically excepted pursuant to clauses (i) through (viiv) above, which is approved by (1) the Required Banks if so long as (x) the proceeds of such sale, transfer or lease are applied as a mandatory prepayment of the Loans to the extent required by the provisions of Section 5.05 of this Agreement, (y) after giving effect to such proposed disposition, no Security Event exists of Default shall have occurred and is continuing be continuing, and (2z) all Banks if a Security Event exists after giving effect to such proposed disposition (and without limiting the generality of the foregoing clause (y)), the Borrower is continuing.in compliance (and, with respect to sales, transfers or leases of assets of Subsidiaries which are not Material Subsidiaries, which sales, transfers or leases individually or in the aggregate exceed $35 million for the period from October 1, 1997 through and including the Expiration Date, the Borrower demonstrates such compliance to the Agent in detail reasonably satisfactory to the Agent) with the leverage ratio set forth in Section 8.02(r). For purposes of this Section 8.02(g)(v), the leverage ratio set forth in Section 8.02(r) shall be calculated as follows:
(i) Indebtedness of the Borrower and its Subsidiaries shall be determined as of the date of the proposed disposition, after giving effect thereto, and (ii) Consolidated Cash Flow from Operations shall be calculated for the twelve-month period ending on the last day of the fiscal quarter of the Borrower which precedes
Appears in 1 contract
Dispositions of Assets or Subsidiaries. The Borrower shall not, and shall not permit any of its Subsidiaries to, sell, convey, assign, lease, abandon abandon, securitize or enter into a securitization transaction, or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or equipment, general intangibles with or without recourse or of capital stock, shares of beneficial interest interest, partnership interests or partnership limited liability company interests of a Subsidiary of the Borrower), except:
(i) transactions involving the sale of inventory in the ordinary course of business;
(ii) any salesubject to the first proviso of clause (v) below, transfer or lease of assets in the ordinary course of business which are no longer necessary or required in the conduct of the Borrower’s business;
(iii) any sale, transfer or lease of assets by any Subsidiary of the Borrower which is a member of the Arch Coal Group to any other member of the Borrower Arch Coal Group or another Loan Party;
(iv) any sale, transfer or lease of assets by any Subsidiary of Arch Western which is a member of the Arch Western Group to any other member of the Arch Western Group;
(iii) subject to the first proviso of clause (v) below, any sale of assets if and to the extent the Net Cash Proceeds thereof are applied within 180 days of the consummation of such sale to the purchase by the Borrower or a Subsidiary of substitute assets; provided that the Borrower shall have delivered to the Administrative Agent a certificate (a "Replacement Sales Certificate") of the chief financial officer or the treasurer of the Borrower, certifying as to (x) the amount of such Net Cash Proceeds and (y) the fact that the Borrower or a Subsidiary shall invest such Net Cash Proceeds in the ordinary course of business which are replaced by substitute assets acquired within 180 days after the date of consummation of such sale; and provided further that if and to the extent such Net Cash Proceeds are not so applied to the purchase of substitute assets within such 180-day period, such sale shall be deemed to have been made on the last day of such period pursuant to clause (vi) below;
(iv) any sale of accounts receivable or leasedcontracts giving rise to accounts receivable in a Permitted Receivables Financing, provided that at the time of any such sale, no Event of Default shall exist or shall result from such sale after giving effect thereto;
(v) any sale, transfer, or lease of assets the after-tax proceeds of which, when added to the after-tax proceeds of other sales, transfers and leases of assets in the same fiscal year, do not exceed, in the aggregate for Borrower and its Subsidiaries, 5% of Borrower’s consolidated total assets at the start of such fiscal year;
(vi) the sale of receivables by the Subsidiaries of Borrower to Citibank, N.A. or General Electric Capital Corporation - Trade Payables Services Division under the arrangements set forth on Schedule 1.1(P) [Permitted Liens]; provided that the amount of outstanding receivables sold under such arrangements shall not at any time exceed $5,000,000 in the aggregate; and
(vii) any sale, transfer or lease (including any lease transaction under Section 7.2.9 [Off-Balance Sheet Financing and Capital Leases]) of assets, other than those specifically excepted pursuant to clauses (i) through (iv) above or clauses (vi), (vii), (viii), (ix) aboveor (x) below, which is approved provided that any disposition of assets by Borrower after the consummation of the MLP Transaction to the master limited partnership or similar entity formed in connection with the MLP Transaction shall be subject to and governed by solely this clause (1v), provided further that with respect to any sale, transfer or lease pursuant to this Section 7.2.4(v): (a) at the time of any such disposition, no Event of Default shall exist or shall result from such disposition, (b) the Required Banks if no Security Event exists Borrower and is continuing its Subsidiaries shall be in compliance with the covenants contained in Sections 7.2.10 [Maximum Leverage Ratio], 7.2.11 [Minimum Fixed Charge Coverage Ratio], and (2) all Banks if a Security Event exists and is continuing7.
Appears in 1 contract
Dispositions of Assets or Subsidiaries. The Borrower Except as provided in Section 8.2.6 [Liquidations, Mergers, Consolidations, Acquisitions], each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarilyinvoluntarily (collectively, “Transfer”), any substantial part of its properties or assets, tangible or intangible (including sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or general intangibles with or without recourse or of capital stock, shares of beneficial interest interest, partnership interests or partnership limited liability company interests of a Subsidiary of the Borrowersuch Loan Party), exceptprovided, however, that notwithstanding the foregoing any Loan Party or Subsidiary of a Loan Party may Transfer assets (including equity interests in Subsidiaries) constituting a substantial part of the assets of the Loan Parties and their Subsidiaries if such assets are sold in an arms length transaction and, at such time and after giving effect thereto, no Potential Default or Event of Default shall have occurred and be continuing and an amount equal to the Net Proceeds received from such Transfer shall be used within 365 days of such sale, lease or disposition, in any combination:
(i) transactions involving to acquire productive assets used or useful in carrying on the sale business of inventory in the ordinary course of business;Loan Parties and their Subsidiaries and having a value and revenue generating capacity at least equal to the Net Proceeds received from such sale, lease or disposition; or
(ii) to prepay or retire the Obligations or obligations outstanding under the Note Purchase Agreements or any saleother Indebtedness permitted under Section 8.2.1(ii)(B). As used in this Section 8.2.7, transfer a Transfer of assets shall be deemed to be a “substantial part” of the assets of the Loan Parties and their Subsidiaries if the book value of such assets, when added to the book value of all other assets sold, leased or lease otherwise disposed of by the Loan Parties and their Subsidiaries during the period beginning with the Closing Date (excluding (A) Transfers of up to $2,000,000 in Net Proceeds in any single transaction or $20,000,000 in the aggregate and (B) an aggregate $50,000,000 in Net Proceeds from Transfers of real estate) to and including the date on which such Transfer occurs, exceeds 30% of Consolidated Total Assets, determined as of the end of the fiscal year immediately preceding such Transfer; provided that there shall be excluded from any determination of a “substantial part” (a) any Transfer of assets in the ordinary course of business which are no longer necessary or required in the conduct of the Borrower’s business;
Loan Parties and their Subsidiaries, and (iiib) so long as no Potential Default or Event of Default shall exist, any sale, transfer or lease of assets by any Subsidiary of the Borrower to the Borrower or another Loan Party;
(iv) any sale, transfer or lease of assets in the ordinary course of business which are replaced by substitute assets acquired or leased;
(v) any sale, transfer, or lease of assets the after-tax proceeds of which, when added to the after-tax proceeds of other sales, transfers and leases of assets in the same fiscal year, do not exceed, in the aggregate for Borrower and its Subsidiaries, 5% of Borrower’s consolidated total assets at the start of such fiscal year;
(vi) the sale of receivables by the Subsidiaries of Borrower to Citibank, N.A. or General Electric Capital Corporation - Trade Payables Services Division under the arrangements set forth on Schedule 1.1(P) [Permitted Liens]; provided that the amount of outstanding receivables sold under such arrangements shall not at any time exceed $5,000,000 in the aggregate; and
(vii) any sale, transfer or lease of assets, other than those specifically excepted pursuant to clauses (i) through from a Loan Party to another Loan Party or any wholly owned Non-Loan Party Subsidiary, or (viii) abovefrom any Non-Loan Party Subsidiary to a Loan Party or to another wholly owned Non-Loan Party Subsidiary or any other Subsidiary with the same percentage ownership by the Parent as the transferor. Notwithstanding the foregoing, which is approved by (1) this Section 8.2.7 shall not apply to or restrict Sale and Leaseback Transactions; provided the Required Banks if no Security Event exists and is continuing and (2) all Banks if a Security Event exists and is continuingBorrower shall comply with Section 8.2.1(vii), to the extent applicable.
Appears in 1 contract
Dispositions of Assets or Subsidiaries. The Borrower Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, sell, convey, assign, lease, license, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or general intangibles (including Intellectual Property) with or without recourse or of capital stock, shares of beneficial interest interest, partnership interests or partnership limited liability company interests of a Subsidiary of the Borrowersuch Loan Party), exceptexcept for the following:
(i) transactions involving the sale of inventory in the ordinary course of business;
(ii) any sale, transfer or lease of assets in the ordinary course of business which are obsolete, surplus, worn out or no longer necessary used or required useful in the conduct of the Borrowersuch Loan Party’s or such Subsidiary’s business;
(iii) any sale, transfer or lease of assets by any (a) one Loan Party or Non-Loan Party Subsidiary, to a Foreign Loan Party or (b) one Domestic Guarantor or a Domestic Non-Loan Party Subsidiary, to a Domestic Guarantor or or (c) a Domestic Non-Loan Party Subsidiary of the Borrower to the Borrower another Domestic Non-Loan Party Subsidiary; provided that no Payment Blockage Event exists or another Loan Partywould be caused thereby;
(iv) sales or other transfers of accounts receivables and related rights of the Company and its Subsidiaries pursuant to or in connection with a Permitted Accounts Receivable Program;
(v) any sale, transfer or lease of assets not listed in clauses (i) through (iv) above provided that (A) no Event of Default shall exist or shall result from such disposition, (B) the aggregate net book value of all assets so sold by the Loan Parties and their Subsidiaries pursuant to this clause (v) shall not exceed 10% of the Consolidated Total Assets at any time;
(a) licensing or sublicensing of any Intellectual Property in the ordinary course of business and which are replaced by substitute assets acquired does not materially interfere with the business of the Company and its Subsidiaries and (b) leases, subleases, licenses or leased;
(v) any sale, transfer, or lease sublicenses of assets the after-tax proceeds of which, when added to the after-tax proceeds of other sales, transfers and leases of assets property in the same fiscal year, ordinary course of business and which do not exceed, in materially interfere with the aggregate for Borrower business of the Company and its Subsidiaries, 5% of Borrower’s consolidated total assets at the start of such fiscal year;
(vi) the sale of receivables by the Subsidiaries of Borrower to Citibank, N.A. or General Electric Capital Corporation - Trade Payables Services Division under the arrangements set forth on Schedule 1.1(P) [Permitted Liens]; provided that the amount of outstanding receivables sold under such arrangements shall not at any time exceed $5,000,000 in the aggregate; and
(vii) any sale of timberland properties;
(viii) any sale, transfer conveyance, assignment, transfer, lease or lease disposition of assetsassets among the Company and its Subsidiaries to the extent permitted under Section 7.2.1, 7.2.4, 7.2.5 or 7.2.6;
(ix) sales or other than those specifically excepted transfers of accounts receivables and related rights of the Company and its Subsidiaries pursuant to clauses or in connection with a Permitted Supply Chain Finance Program;
(i) through (vi) above, which is approved by (1x) the Required Banks if no Security Event exists and is continuing and Swiss Principal Transactions;
(2xi) all Banks if any Specified Entity Sale; and
(xii) any disposal or transfer of a Security Event exists and is continuingProperty located in Germany which cannot be prohibited under section 1136 of the German Civil Code (Bürgerliches Gesetzbuch).
Appears in 1 contract
Dispositions of Assets or Subsidiaries. The Borrower shall not, and shall not permit any of its Subsidiaries to, sell, convey, assign, lease, abandon abandon, securitize or enter into a securitization transaction, or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or equipment, general intangibles with or without recourse or of capital stock, shares of beneficial interest interest, partnership interests or partnership limited liability company interests of a Subsidiary of the Borrower), except:
(ia) transactions involving the sale of inventory in the ordinary course of business;
, (iib) any sale, transfer transfer, lease, sublease or lease license of assets in the ordinary course of business which are no longer necessary or required in the conduct of such Loan Party’s business or the Borrower’s grant in the ordinary course of business of any non-exclusive easements, permits, licenses, rights of way, surface leases or other surface rights or interests, (c) any sale of accounts arising from the export outside of the U.S. of goods or services by any Loan Party, provided that at the time of any such sale, no Event of Default or Potential Default shall exist or shall result from such sale after giving effect thereto, (d) any lease, sublease or license of assets (with a Loan Party as the lessor, sublessor or licensor) in the ordinary course of business, provided that the interests of the Loan Parties in any such lease, sublease or license are subject to the Lenders’ Prior Security Interest, and (e) transfers of condemned property as a result of the exercise of “eminent domain” or other similar policies to the respective Official Body or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of properties that have been subject to a casualty to the respective insurer of such property as part of an insurance settlement;
(iiiii) any sale, transfer or lease of assets by any Subsidiary of the Borrower which is a member of the Arch Coal Group to any other member of the Borrower Arch Coal Group or another Loan Party;
(iv) any sale, transfer or lease of assets by any Non-Guarantor Subsidiary to Arch Coal Group or any other Non-Guarantor Subsidiary;
(iii) any sale of assets if and to the extent the net cash proceeds thereof are applied within 270 days of the consummation of such sale to the purchase by the Borrower or a Subsidiary of the Borrower, as the case may be, of substitute assets; provided that, in the ordinary course case of business which are replaced by any such sale of assets for consideration in excess of $50,000,000, the Borrower shall have delivered to the Administrative Agent a certificate (a “Replacement Sales Certificate”) of the chief financial officer or the treasurer of the Borrower, certifying as to (x) the amount of such net cash proceeds and (y) the fact that the Borrower or a Subsidiary of the Borrower, as the case may be, shall invest such net cash proceeds in substitute assets acquired within 270 days after the date of consummation of such sale;
(iv) any purchase or leasedsale or other transfer (including by capital contribution) of Receivables Assets pursuant to a Permitted Receivables Financing;
(v) any sale, transfer, or lease of assets the after-tax proceeds of which, when added to the after-tax proceeds of other sales, transfers and leases of assets in the same fiscal year, do not exceed, in the aggregate for Borrower and its Subsidiaries, 5% of Borrower’s consolidated total assets at the start of such fiscal year;
(vi) the sale of receivables by the Subsidiaries of Borrower to Citibank, N.A. or General Electric Capital Corporation - Trade Payables Services Division under the arrangements set forth on Schedule 1.1(P) [Permitted Liens]; provided that the amount of outstanding receivables sold under such arrangements shall not at any time exceed $5,000,000 in the aggregate; and
(vii) any sale, transfer or lease of assets, other than those specifically excepted pursuant to clauses (i) through (iv) above or pursuant to clause(vi) below, provided, that with respect to any sale, transfer or lease of assets, pursuant to this Section 8.2.4(v): (a) at the time of any such disposition, no Event of Default shall exist or shall result from such disposition, (b) the Borrower and its Subsidiaries shall be in compliance with the covenants contained in Sections 8.2.10 [Maximum Leverage Ratio], 8.2.11 [Maximum Senior Secured Leverage Ratio], and 8.2.12 [Minimum Interest Coverage Ratio] determined on a pro forma basis after giving effect to each such sale, transfer or lease of assets, (c) the consideration to be paid to the Borrower and its Subsidiaries as permitted by this clause (v) shall not exceed in any calendar year $100,000,000, and (d) if the consideration to be paid to the Borrower and its Subsidiaries per any such sale, transfer or lease exceeds $50,000,000, the Borrower shall have delivered to the Administrative Agent a compliance certificate demonstrating such pro forma compliance (such certificate to be in form and substance reasonably acceptable to the Administrative Agent) prior to consummating such sale or transfer;
(vi) aboveany sale, transfer, lease or disposition of assets as part of an Investment which is approved either (y) an Investment in a Permitted Joint Venture which is permitted by clause (1) the Required Banks if no Security Event exists of Section 8.2.6 [Subsidiaries, Partnerships and is continuing Joint Ventures], or (z) an Investment permitted by Section 8.2.14 [Loans and Investments]; and
(2vii) all Banks if a Security Event exists and is continuingany transactions otherwise permitted by Sections 8.2.3 [Liquidations, Mergers, etc.] or 8.2.9 [Restricted Payments].
Appears in 1 contract
Samples: Credit Agreement (Arch Coal Inc)
Dispositions of Assets or Subsidiaries. The Borrower Borrowers shall not, and shall not permit any of its their Subsidiaries to, sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or general intangibles with or without recourse or of capital stockCapital Stock, shares of beneficial interest or partnership interests of a Subsidiary of the any Borrower), except:
(i) transactions involving the sale of inventory in the ordinary course of business;
(ii) any sale, transfer or lease of assets in the ordinary course of business which are no longer necessary or required in the conduct of the any Borrower’s or such Subsidiary’s business;
(iii) any sale, transfer or lease of assets by (a) any Subsidiary of the a Borrower to the such Borrower or another Loan PartyParty or (b) any non-Loan Party Subsidiary to another non-Loan Party Subsidiary;
(iv) any sale, transfer or lease of assets in the ordinary course of business which are replaced by substitute assets acquired or leased; provided such substitute assets are subject to the Banks’ Prior Security Interest to the extent such substitute assets are required to become Collateral hereunder or under any of the Loan Documents;
(v) any sale, transfer, transfer or lease of assets constituting all or a portion of the after-tax proceeds TAS Business (including, without limitation, any Specified TAS Business Unit); provided that (x) such sale, transfer or lease is made for fair market value, (y) at least 75% of whichthe NAI-0000000000v6 consideration received therefor is in the form of cash or Cash Equivalents and (z) no Event of Default or Potential Default exists at the time of any such sale, when added transfer or lease or will result therefrom; provided further that, other than with respect to any sale, transfer or lease of assets constituting all or a portion of any Specified TAS Business Unit, the Required Banks shall have approved amendments to the after-tax proceeds of other salescovenants set forth in Sections 8.2.15, transfers 8.2.16 and leases of assets in the same fiscal year8.2.17 after giving effect to such sale, do not exceed, in the aggregate for Borrower and its Subsidiaries, 5% of Borrower’s consolidated total assets at the start of such fiscal yeartransfer or lease;
(vi) (a) the sale Payment Discount Arrangements and (b) sales of receivables by accounts receivable and Related Assets pursuant to a Specified Payment Discount Arrangement; provided, that in the Subsidiaries case of Borrower this clause (b), (x) the aggregate outstanding purchase price of all such accounts receivable and Related Assets sold pursuant to Citibank, N.A. or General Electric Capital Corporation - Trade Payables Services Division under the arrangements set forth on Schedule 1.1(P) [Permitted Liens]; provided that the amount of outstanding receivables sold under such arrangements all Specified Payment Discount Arrangements shall not exceed $90,000,000 at any time exceed $5,000,000 in time, (y) such Specified Payment Discount Arrangement shall be subject to such other terms and conditions as may be required by Administrative Agent and (z) no Specified Receivables Purchase Agreement may be amended or modified without the aggregate; andprior written consent of the Administrative Agent;
(vii) any sale, transfer or lease of assets, other than those specifically excepted pursuant to clauses (i) through (vi) above, which is approved by the Required Banks;
(1viii) to the extent done as part of the Receivables Facility, the sale, contribution, transfer, conveyance or assignment of Receivables and Related Rights by TGI and its Subsidiaries to the SP Sub and the sale by the SP Sub of individual variable percentage interests in the Purchased Interests to the Purchaser (each as defined in the Receivables Purchase Agreement or the Receivables Purchase and Sale Agreement, as applicable);
(ix) the Required Banks if no Security Event exists and is continuing and sale or transfer of equipment in connection with a sale – leaseback transaction in which a Loan Party incurs Capital Lease Obligations provided the Loan Parties remain in compliance with Section 8.2.1(i)(g);
(2x) all Banks if to the extent pursuant to a Security Event exists and is continuingdissolution, liquidation or winding-up permitted by 8.2.6(iii) above; and
(xi) any conveyance, transfer or contribution of Capital Stock of a Subsidiary permitted by Section 8.2.4(viii) above.
Appears in 1 contract
Samples: Credit Agreement (Triumph Group Inc)
Dispositions of Assets or Subsidiaries. The Borrower Borrowers shall not, and shall not permit any of its their Subsidiaries to, sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or general intangibles with or without recourse or of capital stock, shares of beneficial interest or partnership interests of a Subsidiary of the any Borrower), except:
(i) transactions involving the sale of inventory in the ordinary course of business;
(ii) any sale, transfer or lease of assets in the ordinary course of business which are no longer necessary or required in the conduct of the any Borrower’s or such Subsidiary’s business;
(iii) any sale, transfer or lease of assets by (a) any Subsidiary of the a Borrower to the such Borrower or another Loan PartyParty or (b) any non-Loan Party Subsidiary to another non-Loan Party Subsidiary;
(iv) any sale, transfer or lease of assets in the ordinary course of business which are replaced by substitute assets acquired or leased; provided such substitute assets are subject to the Banks’ Prior Security Interest to the extent such substitute assets are required to become Collateral hereunder or under any of the Loan Documents;
(va) any sale, transfer or lease of assets constituting all or a portion of the TAS Business, so long as (x) the Net Asset Sale Proceeds of such sale, transfer or lease are applied to prepay the Loans and/or permanently reduce the Commitments as set forth in Section 5.6 hereof, and (y) such sale, transfer or lease is made for fair market value, and (b) any other sale, transfer, or lease of assets the after-tax proceeds of which, when added to the after-tax proceeds of other sales, transfers and leases of assets in the same fiscal year, year do not exceed, in the aggregate for Borrower TGI and its Subsidiaries, (1) for each fiscal year ending on or prior to March 31, 2021, 5% of BorrowerTGI’s consolidated total assets at the start of such fiscal year and (2) for each fiscal year ending after March 31, 2021, 10% of TGI’s consolidated total assets at the start of such fiscal year;
(via) the sale Payment Discount Arrangements and (b) sales of receivables by accounts receivable and Related Assets pursuant to a Specified Payment Discount Arrangement; provided, that in the Subsidiaries case of Borrower this clause (b), (x) the aggregate outstanding purchase price of all such accounts receivable and Related Assets sold pursuant to Citibank, N.A. or General Electric Capital Corporation - Trade Payables Services Division under the arrangements set forth on Schedule 1.1(P) [Permitted Liens]; provided that the amount of outstanding receivables sold under such arrangements all Specified Payment Discount Arrangements shall not exceed $90,000,000 at any time exceed $5,000,000 in time, (y) such Specified Payment Discount Arrangement shall be subject to such other terms and conditions as may be required by Administrative Agent and (z) no Specified Receivables Purchase Agreement may be amended or modified without the aggregate; andprior written consent of the Administrative Agent;
(vii) any sale, transfer or lease of assets, other than those specifically excepted pursuant to clauses (i) through (vi) above, which is approved by the Required Banks;
(1viii) to the extent done as part of the Receivables Facility, the sale, contribution, transfer, conveyance or assignment of Receivables and Related Rights by TGI and its Subsidiaries to the SP Sub and the sale by the SP Sub of individual variable percentage interests in the Purchased Interests to the Purchaser (each as defined in the Receivables Purchase Agreement or the Receivables Purchase and Sale Agreement, as applicable); and
(ix) the Required Banks if no Security Event exists and is continuing and sale or transfer of equipment in connection with a sale – leaseback transaction in which a Loan Party incurs Capital Lease Obligations provided the Loan Parties remain in compliance with Section 8.2.1(i)(g);
(2x) all Banks if to the extent pursuant to a Security Event exists and is continuingdissolution, liquidation or winding-up permitted by 8.2.6(iii) above; and
(xi) any conveyance, transfer or contribution of Capital Stock of a Subsidiary permitted by Section 8.2.4(viii) above.
Appears in 1 contract
Samples: Credit Agreement (Triumph Group Inc)
Dispositions of Assets or Subsidiaries. The Borrower None of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, sell, convey, assign, lease, distribute (including by spin-off or split-off), abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or general intangibles with or without recourse or of capital stock, shares of beneficial interest or partnership interests of a Subsidiary of the Borrower)intangible, except:
(i) transactions involving the sale of inventory in the ordinary course of business;
(ii) any sale, transfer or lease of properties or assets in the ordinary course of business which are no longer necessary or required in the conduct of the Borrower’s such Loan Party's business;; 219962390
(iii) any sale, transfer transfer, lease or lease other conveyance of properties or assets by any Subsidiary of the Borrower Loan Party to the Borrower or another Loan Party, including, without limitation, a Subsidiary that will be merged or consolidated with a Loan Party pursuant to a series of transactions that are integrated with such sale, transfer, lease or other conveyance;
(iv) any sale, transfer or lease of properties or assets in the ordinary course of business which are replaced by substitute properties or assets acquired or leasedleased or any disposition of any real property in connection with (a) a sale-leaseback transaction permitted under Section 8.2.1, or (b) a like-kind exchange described in Section 1031 of the Internal Revenue Code and the Treasury Department regulations promulgated thereunder;
(v) any sale or transfer by the Parent of the capital stock or other equity interests of the Parent; or
(vi) any sale, transfer, lease or lease other conveyance of assets the after-tax proceeds of which, when added to the after-tax proceeds of other sales, transfers and leases of assets in the same fiscal year, do not exceed, in the aggregate for Borrower and its Subsidiaries, 5% of Borrower’s consolidated total assets at the start of such fiscal year;
(vi) the sale of receivables by the Subsidiaries of Borrower to Citibank, N.A. properties or General Electric Capital Corporation - Trade Payables Services Division under the arrangements set forth on Schedule 1.1(P) [Permitted Liens]; provided that the amount of outstanding receivables sold under such arrangements shall not at any time exceed $5,000,000 in the aggregate; and
(vii) any sale, transfer or lease of assets, other than those specifically excepted pursuant to clauses (i) through (viv) above, which is approved by provided that:
(1a) there shall not exist any Event of Default or Potential Default immediately prior to and after giving effect to such sale; and
(b) the Required Loan Parties shall be in compliance with all of the covenants herein applicable to any Loan Party and with respect to any sale the proceeds of which exceed Ten Million and 00/100 Dollars ($10,000,000.00), the Borrowing Agent shall deliver a Compliance Certificate to the Administrative Agent for the benefit of the Banks if no Security Event exists and is continuing and at least ten (210) all Banks if a Security Event exists and is continuingBusiness Days before such sale confirming the same.
Appears in 1 contract
Samples: Credit Agreement (Big Lots Inc)
Dispositions of Assets or Subsidiaries. The Borrower -------------------------------------- shall not, and shall not permit any of its Subsidiaries the other Loan Parties to, sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including but not limited to sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or general intangibles with or without recourse or of capital stock, shares of beneficial interest or partnership interests of a Subsidiary of the Borrower), except:
(i) transactions involving the sale of inventory in the ordinary course of business;
(ii) any sale, transfer or lease of assets in the ordinary course of business which are no longer necessary or required in in, or which are not material to, the conduct of the Borrower’s 's or such Subsidiary's business, provided that such sales, transfers or leases of assets shall not exceed in the aggregate for the Borrower and its Subsidiaries $10,000,000 (based upon fair market value at the time of the sale) for the period from and after the Eighteenth Amendment Effective Date;
(iiiii) any sale, transfer or lease of assets by any Subsidiary of the Borrower wholly- owned Loan Party to the Borrower or another any other wholly owned Loan Party (or by the Borrower to a wholly owned Loan Party);
(iviii) any sale, transfer or lease of assets in the ordinary course of business which are replaced by substitute assets acquired or leasedleased within the parameters of Section 8.02(w) provided such substitute assets are subject to the Banks' Prior Security Interest;
(iv) any sale or transfer of assets which are obsolete or no longer used or useful in the business of the Borrower or its Subsidiaries; provided that such sales, transfers or dispositions shall not exceed, in any fiscal year, $1,000,000 in the aggregate for the Borrower and its Subsidiaries;
(v) any sale, transfer, or lease of assets the after-tax proceeds of which, when added to the after-tax proceeds of other sales, transfers and leases of assets in the same fiscal year, do not exceed, in the aggregate for Borrower and its Subsidiaries, 5% of Borrower’s consolidated total assets at the start of such fiscal year;
(vi) the sale of receivables by the Subsidiaries of Borrower to Citibank, N.A. or General Electric Capital Corporation - Trade Payables Services Division under the arrangements set forth on Schedule 1.1(P) [Permitted Liens]; provided that the amount of outstanding receivables sold under such arrangements shall not at any time exceed $5,000,000 in the aggregate; and
(vii) any sale, transfer or lease of assets, other than those specifically excepted pursuant to clauses (i) through (viiv) above, which either: (A) has aggregate Net Sale Proceeds for the Borrower and its Subsidiaries for the period from and after the Eighteenth Amendment Effective Date which do not exceed $35,000,000 or (B) is approved by (1) the Required Banks if so long as in the case of a transaction under clause (A) or (B), the Borrower complies with all of the following: (w) the proceeds received by the applicable Loan Party shall equal the fair market value of the asset sold, transferred or leased, (x) the proceeds of such sale, transfer or lease are applied as a mandatory prepayment of the Loans in accordance with the provisions of Section 5.05 of this Agreement, (y) after giving effect to such proposed disposition, no Security Event exists of Default or Potential Default shall have occurred and is continuing be continuing, and (2z) after giving effect to such proposed disposition (and without limiting the generality of the foregoing clause (y)), the Borrower is in compliance (and with respect to sales, transfers or leases of assets which individually or in a series of related transactions equal or exceed $5,000,000, the Borrower demonstrates such compliance to the Administrative Agent in detail reasonably satisfactory to the Administrative Agent by the delivery to the Administrative Agent, at least five (5) days prior to such transaction of a compliance certificate,) on a proforma basis, after giving effect to such sale, transfer or lease, with the financial covenants set forth in Sections 8.02(q), (r), (s), (t) and (u); and
(vi) any distribution or dividend permitted under Section 8.02 (e) (iv), (v), (vi)or (vii). For purposes of this Section 8.02(g) and the demonstration of pro forma compliance with the financial covenants set forth in Sections 8.02(q), (r), (s), (t) and (u):
(i) Consolidated Net Worth, Adjusted Total Indebtedness and Total Indebtedness shall be calculated as of each date of determination (after giving effect to the proposed sale, transfer or lease of assets);
(ii) Consolidated Cash Flow from Operations and Consolidated Net Income shall be calculated as of each date of determination based upon the four fiscal quarters most recently then ended for which a Compliance Certificate has been delivered to the Administrative Agent, but excluding therefrom all Banks if a Security Event exists amounts attributable to the assets sold, transferred or leased; and
(iii) the denominator (set forth in clause (y) of Section 8.02(q)) of the Fixed Charge Coverage Ratio shall be determined after giving effect to the proposed sale, transfer or lease of assets for purposes of the pro forma determination of interest expense and is continuingof current maturities of long-term Indebtedness.
Appears in 1 contract
Dispositions of Assets or Subsidiaries. The Borrower None of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, sell, convey, assign, lease, sell and leaseback, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including sale, assignment, discount or other disposition of accounts, contract rights, chattel paperAccounts, equipment or general intangibles with or without recourse or of capital stock, shares of beneficial interest interest, partnership interests or partnership limited liability company interests of a Subsidiary of the Borrower)such Loan Party) or grant options or rights of first refusal in its assets, except:
(i) transactions involving the sale of inventory in the ordinary course of business;
(ii) any sale, transfer or lease of assets in the ordinary course of business which are no longer necessary or required in the conduct of the Borrower’s such Loan Party's business;
(iii) any sale, transfer or lease of assets by any Subsidiary of the Borrower Loan Party to the Borrower or another Loan Party;
(iv) any sale, transfer or lease of assets, so long as (A) within two hundred and seventy (270) days following any such sale, transfer or lease, the assets in that were the ordinary course of business which subject thereof are replaced by or subject to contractual obligation for the replacement by, substitute, replacement or other assets of the type used in any Loan Party's business, and (B) all such substitute assets acquired are subject to the Collateral Trustee's Prior Security Interest for the benefit of the Secured Parties to the extent such substitute assets are not identified on Schedule 8.1.14; provided that the fair market value of all assets sold, transferred or leasedleased under this clause in any given fiscal year shall not exceed $250,000,000 (for purposes of this Section, so long as an option or right of first refusal is in effect with respect to certain assets, it shall be treated as a disposition on the date that the option or right of first refusal is granted);
(v) any sale, transfer, sale of Accounts or lease of assets the after-tax proceeds of which, when added contracts giving rise to Accounts pursuant to the after-tax proceeds of other salesPermitted Receivables Financing by the Securitization Subsidiary, transfers and leases of assets in the same fiscal year, do not exceed, in the aggregate for Borrower and its Subsidiaries, 5% of Borrower’s consolidated total assets provided that at the start time of any such fiscal yearsale no Event of Default shall exist or shall result from such sale after giving effect thereto;
(vi) the any sale of receivables Accounts arising from the export outside of the U.S. of goods or services by any Loan Party, provided that at the Subsidiaries time of Borrower to Citibankany such sale, N.A. no Event of Default or General Electric Capital Corporation - Trade Payables Services Division under Potential Default shall exist or shall result from such sale after giving effect thereto;
(vii) any lease, sublease or license of assets (with a Loan Party as the arrangements set forth on Schedule 1.1(Plessor, sublessor or licensor) [Permitted Liens]; in the ordinary course of business, provided that the amount interests of outstanding receivables sold under the Loan Parties in any such arrangements shall not at any time exceed $5,000,000 in lease, sublease or license are subject to the aggregate; andLenders' Prior Security Interest;
(viiviii) any sale, transfer or lease of assets, other than those specifically excepted pursuant to clauses (i) through (vivii) aboveabove or (ix) through (xii) below, which is approved by so long as (A) the sum of (1) the Required Banks if no Security Event exists and is continuing and Net Cash Proceeds of such sale, plus (2) all Banks if other Net Cash Proceeds from sales, transfers or leases of assets calculated for the period from the Closing Date through and including the date of determination, does not exceed an aggregate amount of $150,000,000 less (without duplication) the fair market value of assets contributed in the form of Investments pursuant to Section 8.2.4(viii) subsequent to the Closing Date (for purposes of this Section, so long as an option or right of first refusal is in effect with respect to certain assets, it shall be treated as a Security disposition on the date that the option or right of first refusal is granted), and (B) notification of any such sale, transfer or lease of assets shall be included within the Borrower's Compliance Certificate delivered pursuant to Section 8.3.4 [Certificate of the Borrower] for each fiscal quarter in which any such sale, transfer or lease of assets has occurred;
(ix) dispositions pursuant to Permitted Gas Properties Transactions;
(x) the sale, transfer or lease of Non-Strategic Assets so long as no Potential Default or Event exists of Default is then in existence or will result therefrom and, in the event that the Consideration exceeds the Threshold Amount, the Loan Parties shall deliver to the Paying Agent at least five (5) Business Days before such sale, transfer or lease a certificate of the Borrower evidencing pro forma compliance with the covenants contained in Sections 8.2.15 [Maximum Leverage Ratio] and is continuing8.2.16 [Minimum Interest Coverage Ratio];
(xi) dispositions of any Hydrocarbon Property so long as no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such disposition; and
(xii) the sale, lease or transfer of all or any portion of the Baltimore Dock Facility so long as no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such sale, lease or transfer.
Appears in 1 contract
Dispositions of Assets or Subsidiaries. The Borrower shall not, and shall not permit any of its Subsidiaries to, sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or general intangibles with or without recourse or of capital stock, shares of beneficial interest or partnership interests of a Subsidiary of the Borrower), except:
(i) transactions involving the sale of inventory in the ordinary course of business;
(ii) any sale, transfer or lease of assets in the ordinary course of business which are no longer necessary or required in the conduct of the Borrower’s 's business;
(iii) any sale, transfer or lease of assets by any Subsidiary of the Borrower to the Borrower or another Loan PartySubsidiary;
(iv) any sale, transfer or lease of assets in the ordinary course of business which are replaced by substitute assets acquired or leasedleased within the parameters of Section 7.2.15;
(v) any sale, transfer, or lease of assets the after-tax proceeds of which, when added to the after-tax proceeds of other sales, transfers and leases of assets in the same fiscal yearyear after fiscal year 2001, do not exceed, in the aggregate for Borrower and its Subsidiaries, 5% of Borrower’s 's consolidated total assets at the start of such fiscal yearFiscal Year;
(vi) the sale of receivables (in one or more transactions) by the one or more Subsidiaries of Borrower to Citibank, N.A. or General Electric Capital Corporation - Trade Payables Services Division under the arrangements set forth on Schedule 1.1(P) [Permitted Liens]assets of such Subsidiaries in fiscal year 2001; provided that (A) the amount of outstanding receivables sold under such arrangements shall not at any time exceed $5,000,000 in the aggregate; and
proceeds thereof (viiafter transaction costs) any sale, transfer or lease of assets, other than those specifically excepted pursuant to clauses are (i) through (vi) above, which is approved by (1) greater than net book value of the Required Banks if no Security Event exists and is continuing and (2) all Banks if a Security Event exists and is continuing.assets sold;
Appears in 1 contract
Dispositions of Assets or Subsidiaries. The Borrower shall not, and shall not permit any of its Subsidiaries to, sell, convey, assign, lease, abandon abandon, securitize or enter into a securitization transaction, or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or equipment, general intangibles with or without recourse or of capital stock, shares of beneficial interest interest, partnership interests or partnership limited liability company interests of a Subsidiary of the Borrower), except:
(i) (A) transactions involving the sale of inventory in the ordinary course of business;
, (iiB) any sale, transfer transfer, lease, sublease or lease license of assets in the ordinary course of business which are no longer necessary or required in the conduct of the Borrower’s business;
(iii) any sale, transfer or lease of assets by any Subsidiary of the Borrower to the Borrower or another Loan Party;
(iv) any sale, transfer ’s business or lease of assets the grant in the ordinary course of business which are replaced by substitute assets acquired of any non-exclusive easements, permits, licenses, rights of way, surface leases or leased;
other surface rights or interests, (vC) any sale of accounts arising from the export outside of the U.S. of goods or services by any Loan Party, provided that (x) at the time of any such sale, transferno Event of Default shall exist or shall result from such sale, or lease of assets (y) such sale shall be for fair market value and (z) the after-tax proceeds of which, when added consideration to be paid to the after-tax proceeds of other sales, transfers and leases of assets in the same fiscal year, do not exceed, in the aggregate for Borrower and its SubsidiariesSubsidiaries as permitted by this clause (C) shall consist solely of cash, 5% (D) any lease, sublease or license of Borrower’s consolidated total assets at (with a Loan Party as the start lessor, sublessor or licensor) in the ordinary course of such fiscal year;
(vi) the sale of receivables by the Subsidiaries of Borrower to Citibankbusiness, N.A. or General Electric Capital Corporation - Trade Payables Services Division under the arrangements set forth on Schedule 1.1(P) [Permitted Liens]; provided that the amount interests of outstanding receivables sold under the Loan Parties in any such arrangements shall not at any time exceed $5,000,000 in lease, sublease or license are subject to the aggregate; and
(vii) any saleAgent’s first priority security interest subject to Permitted Liens, transfer or lease of assets, other than those specifically excepted pursuant to clauses (i) through (vi) above, which is approved by (1) the Required Banks if no Security Event exists and is continuing and (2E) all Banks if transfers of condemned property as a Security Event exists result of the exercise of “eminent domain” or other similar policies to the respective Official Body or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and is continuing.transfers of properties that have been subject to a casualty to the respective insurer of such property as part of an insurance settlement;
Appears in 1 contract
Samples: Credit Agreement (Arch Coal Inc)
Dispositions of Assets or Subsidiaries. The Borrower Borrowers shall not, and shall not permit any of its their Subsidiaries to, sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or general intangibles with or without recourse or of capital stock, shares of beneficial interest or partnership interests of a Subsidiary of the any Borrower), except:
(i) transactions involving the sale of inventory in the ordinary course of business;
(ii) any sale, transfer or lease of assets in the ordinary course of business which are no longer necessary or required in the conduct of the any Borrower’s 's or such Subsidiary's business;
(iii) any sale, transfer or lease of assets by (a) any Subsidiary of the a Borrower to the such Borrower or another Loan PartyParty or (b) any non-Loan Party Subsidiary to another non-Loan Party Subsidiary;
(iv) any sale, transfer or lease of assets in the ordinary course of business which are replaced by substitute assets acquired or leased; provided such substitute assets are subject to the Banks' Prior Security Interest to the extent such substitute assets are required to become Collateral hereunder or under any of the Loan Documents;
(v) any sale, transfer, or lease of assets the after-tax proceeds of which, when added to the after-tax proceeds of other sales, transfers and leases of assets in the same fiscal year, do not exceed, in the aggregate for Borrower TGI and its Subsidiaries, 5% of Borrower’s TGI's consolidated total assets at the start of such fiscal year;
(vi) the sale of receivables by the Subsidiaries of Borrower to Citibank, N.A. or General Electric Capital Corporation - Trade Payables Services Division under the arrangements set forth on Schedule 1.1(P) [Permitted Liens]; provided that the amount of outstanding receivables sold under such arrangements shall not at any time exceed $5,000,000 in the aggregate; andPayment Discount Arrangements;
(vii) any sale, transfer or lease of assets, other than those specifically excepted pursuant to clauses (i) through (vi) above, which is approved by the Required Banks;
(1viii) to the extent done as part of the Receivables Facility, the sale, contribution, transfer, conveyance or assignment of Receivables and Related Rights by TGI and its Subsidiaries to the SP Sub and the sale by the SP Sub of individual variable percentage interests in the Purchased Interests to the Purchaser; and
(ix) the Required Banks if no Security Event exists and is continuing and sale or transfer of equipment in connection with a sale - leaseback transaction in which a Loan Party incurs Capital Lease Obligations provided the Loan Parties remain in compliance with Section 8.2.1(i)(g);
(2x) all Banks if to the extent pursuant to a Security Event exists and is continuingdissolution, liquidation or winding-up permitted by 8.2.6(iii) above; and
(xi) Any conveyance, transfer or contribution of Capital Stock of a Subsidiary permitted by Section 8.2.4(viii) above.
Appears in 1 contract
Samples: Credit Agreement (Triumph Group Inc)
Dispositions of Assets or Subsidiaries. The Borrower shall notNo Loan Party shall, and no Loan Party shall not permit any of its Subsidiaries to, sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or general intangibles with or without recourse or of capital stock, shares of beneficial interest interest, partnership interests or partnership limited liability company interests of a Subsidiary of the Borrowersuch Loan Party), except:
(i) transactions involving the sale of inventory in the ordinary course of business;
(ii) any sale, transfer or lease of assets in the ordinary course of business which are no longer necessary or required in the conduct of the Borrowersuch Loan Party’s or such Subsidiary’s business;
(iii) any sale, transfer or lease of assets by any wholly owned Subsidiary of the Borrower such Loan Party to the Borrower or another Loan Party;
(iv) any sale, transfer or lease of assets in the ordinary course of business which are replaced by substitute assets; provided such substitute assets acquired or leasedare subject to the Prior Security Interest in favor of the Administrative Agent;
(v) any salesale of Equity Interests of any Subsidiary of Parent (other than GSICS Equity Interests) to (A) any officers, transferdirectors, employees or lease other representatives of assets the afterBorrowers or any Subsidiary of Parent or (B) any non-tax proceeds affiliated third party; provided that (1) Equity Interests of which, when added to the after-tax proceeds of other sales, transfers and leases of assets not more than two such Subsidiaries in the same fiscal yearaggregate shall be permitted to be sold, do not exceed(2) the Equity Interests of any Subsidiary sold to any non-affiliated third party shall represent at least 5% of the total outstanding voting securities or other interests normally entitled to vote for the election of one or more directors or trustees (regardless of any contingency which does or may suspend or dilute the voting rights) of such Subsidiary, (3) the Equity Interests of any Subsidiary sold to any Person shall represent, in the aggregate for Borrower all sales, less than 50%, of the total outstanding voting securities or other interests normally entitled to vote for the election of one or more directors or trustees (regardless of any contingency which does or may suspend or dilute the voting rights) of such Subsidiary, (4) the Consolidated Adjusted EBITDA attributable to any such Subsidiary (and its SubsidiariesSubsidiaries on a consolidated basis) for which Equity Interests are being sold to any Person shall not exceed $10,000,000 for the four fiscal quarters most recently reported, and (5% of Borrower’s consolidated total assets at ) if any after-tax proceeds (as reasonably estimated by the start Borrowers) of such fiscal yearsale are distributed (as a dividend or otherwise) to, or otherwise received by, any parent entity of such Subsidiary, such proceeds are applied as a mandatory prepayment of the Loans in accordance with the provisions of Section 5.7(a) [Sale of Assets] above (but such proceeds shall not be subject to the 365 day reinvestment provisions contained in such Section); provided further that, and for the avoidance of doubt, (x) the Equity Interests of any such Subsidiary that are held by the Borrowers or any of their Subsidiaries following any such sale will continue to constitute Collateral and (y) if such proceeds referred to in clause (v)(5) of this Section 8.2(g) are distributed to, or otherwise received by, such Subsidiary, such proceeds shall not be applied as a mandatory prepayment of the Loans in accordance with the provisions of Section 5.7(a) [Sale of Assets] for so long as such proceeds are retained by such Subsidiary;
(vi) the sale of receivables by the Subsidiaries of Borrower to Citibank, N.A. or General Electric Capital Corporation - Trade Payables Services Division under the arrangements set forth on Schedule 1.1(P) [Permitted Liens]; provided that the amount of outstanding receivables sold under such arrangements shall not at any time exceed $5,000,000 in the aggregate; and
(vii) any sale, transfer or lease of assets, other than those specifically excepted pursuant to clauses (i) through (viv) above, which is approved by (1) the Required Banks if no Security Event exists and is continuing and Lenders so long as the after-tax proceeds (2as reasonably estimated by the Borrowers) all Banks if are applied as a Security Event exists and is continuingmandatory prepayment of the Loans in accordance with the provisions of Section 5.7(a) [Sale of Assets] above.
Appears in 1 contract
Samples: Credit Agreement (Gsi Commerce Inc)
Dispositions of Assets or Subsidiaries. The Borrower shall not, and shall not permit any of its Subsidiaries to, sell, convey, assign, lease, abandon abandon, securitize or enter into a securitization transaction, or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or equipment, general intangibles with or without recourse or of capital stock, shares of beneficial interest interest, partnership interests or partnership limited liability company interests of a Subsidiary of the Borrower), except:
(i) transactions involving the sale of inventory in the ordinary course of business;
(ii) any salesubject to the first proviso of clause (v) below, transfer or lease of assets in the ordinary course of business which are no longer necessary or required in the conduct of the Borrower’s business;
(iii) any sale, transfer or lease of assets by any Subsidiary of the Borrower which is a member of the Arch Coal Group to any other member of the Borrower Arch Coal Group or another Loan Party;
(iv) any sale, transfer or lease of assets by any Subsidiary of Arch Western which is a member of the Arch Western Group to any other member of the Arch Western Group;
(iii) subject to the first proviso of clause (v) below, any sale of assets if and to the extent the Net Cash Proceeds thereof are applied within 180 days of the consummation of such sale to the purchase by the Borrower or a Subsidiary of substitute assets; provided that the Borrower shall have delivered to the Administrative Agent a certificate (a "Replacement Sales Certificate") of the chief financial officer or the treasurer of the Borrower, certifying as to (x) the amount of such Net Cash Proceeds and (y) the fact that the Borrower or a Subsidiary shall invest such Net Cash Proceeds in the ordinary course of business which are replaced by substitute assets acquired within 180 days after the date of consummation of such sale; and provided further that if and to the extent such Net Cash Proceeds are not so applied to the purchase of substitute assets within such 180-day period, such sale shall be deemed to have been made on the last day of such period pursuant to clause (vi) below;
(iv) any sale of accounts receivable or leasedcontracts giving rise to accounts receivable in a Permitted Receivables Financing, provided that at the time of any such sale, no Event of Default shall exist or shall result from such saleafter giving effect thereto;
(v) any sale, transfer, or lease of assets the after-tax proceeds of which, when added to the after-tax proceeds of other sales, transfers and leases of assets in the same fiscal year, do not exceed, in the aggregate for Borrower and its Subsidiaries, 5% of Borrower’s consolidated total assets at the start of such fiscal year;
(vi) the sale of receivables by the Subsidiaries of Borrower to Citibank, N.A. or General Electric Capital Corporation - Trade Payables Services Division under the arrangements set forth on Schedule 1.1(P) [Permitted Liens]; provided that the amount of outstanding receivables sold under such arrangements shall not at any time exceed $5,000,000 in the aggregate; and
(vii) any sale, transfer or lease (including any lease transaction under Section 7.2.9 [Off-Balance Sheet Financing and Capital Leases]) of assets, other than those specifically excepted pursuant to clauses (i) through (viiv) above, which is approved provided that any disposition of assets by Borrower after the consummation of the MLP Transaction to the master limited partnership or similar entity formed in connection with the MLP Transaction shall be subject to and governed by solely this clause (1v), provided further that (a) at the time of any such disposition, no Event of Default shall exist or shall result from such disposition, (b) the Required Banks if no Security Event exists Borrower and is continuing its Subsidiaries shall be in compliance with the covenants contained in Sections 7.2.10 [Maximum Leverage Ratio], 7.2.11 [Minimum Fixed Charge Coverage Ratio], and (2) all Banks if a Security Event exists and is continuing7.
Appears in 1 contract
Dispositions of Assets or Subsidiaries. The Borrower Borrowers shall not, and shall not permit any of its their Subsidiaries to, sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or general intangibles with or without recourse or of capital stock, shares of beneficial interest or partnership interests of a Subsidiary of the any Borrower), except:
(i) transactions involving the sale of inventory in the ordinary course of business;
(ii) any sale, transfer or lease of assets in the ordinary course of business which are no longer necessary or required in the conduct of the any Borrower’s 's or such Subsidiary's business;
(iii) any sale, transfer or lease of assets by (a) any Subsidiary of the a Borrower to the such Borrower or another Loan PartyParty or (b) any non-Loan Party Subsidiary to another non-Loan Party Subsidiary;
(iv) any sale, transfer or lease of assets in the ordinary course of business which are replaced by substitute assets acquired or leased; provided such substitute assets are subject to the Banks' Prior Security Interest to the extent such substitute assets are required to become Collateral hereunder or under any of the Loan Documents;
(v) any sale, transfer, or lease of assets the after-tax proceeds of which, when added to the after-tax proceeds of other sales, transfers and leases of assets in the same fiscal year, do not exceed, in the aggregate for Borrower TGI and its Subsidiaries, 5% of Borrower’s TGI's consolidated total assets at the start of such fiscal year;
(vi) the sale of receivables by the Subsidiaries of Borrower to Citibank, N.A. or General Electric Capital Corporation - Trade Payables Services Division under the arrangements set forth on Schedule 1.1(P) [Permitted Liens]; provided that the amount of outstanding receivables sold under such arrangements shall not at any time exceed $5,000,000 in the aggregate; andPayment Discount Arrangements;
(vii) any sale, transfer or lease of assets, other than those specifically excepted pursuant to clauses (i) through (vi) above, which is approved by the Required Banks;
(1viii) to the extent done as part of the Receivables Facility, the sale, contribution, transfer, conveyance or assignment of Receivables and Related Rights by TGI and its Subsidiaries to the SP Sub and the sale by the SP Sub of individual variable percentage interests in the Purchased Interests to the Purchaser; and
(ix) the Required Banks if no Security Event exists and is continuing and sale or transfer of equipment in connection with a sale - leaseback transaction in which a Loan Party incurs Capital Lease Obligations provided the Loan Parties remain in compliance with Section 7.2.1(i)(g); and
(2x) all Banks if to the extent pursuant to a Security Event exists and is continuingdissolution, liquidation or winding-up permitted by 7.2.6(iii) above.
Appears in 1 contract
Dispositions of Assets or Subsidiaries. The Borrower Except as provided in Section 8.2.6 [Liquidations, Mergers, Consolidations, Acquisitions], each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarilyinvoluntarily (collectively, “Transfer”), any substantial part of its properties or assets, tangible or intangible (including sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or general intangibles with or without recourse or of capital stock, shares of beneficial interest interest, partnership interests or partnership limited liability company interests of a Subsidiary of the Borrowersuch Loan Party), exceptprovided, however, that notwithstanding the foregoing any Loan Party or Subsidiary of a Loan Party may Transfer assets (including equity interests in Subsidiaries) constituting a substantial part of the assets of the Loan Parties and their Subsidiaries if such assets are sold in an arms length transaction and, at such time and after giving effect thereto, no Potential Default or Event of Default shall have occurred and be continuing and an amount equal to the Net Proceeds received from such Transfer shall be used within 365 days of such sale, lease or disposition, in any combination:
(i) transactions involving to acquire productive assets used or useful in carrying on the sale business of inventory in the ordinary course of business;Loan Parties and their Subsidiaries and having a value and revenue generating capacity at least equal to the Net Proceeds received from such sale, lease or disposition; or
(ii) to prepay or retire the Obligations or obligations outstanding under any saleIndebtedness permitted under Section 8.2.1(ii). As used in this Section 8.2.7, transfer a Transfer of assets shall be deemed to be a “substantial part” of the assets of the Loan Parties and their Subsidiaries if the book value of such assets, when added to the book value of all other assets sold, leased or lease otherwise disposed of by the Loan Parties and their Subsidiaries during the period beginning with the Closing Date (excluding (A) Transfers of up to $2,000,000 in Net Proceeds in any single transaction or $20,000,000 in the aggregate and (B) an aggregate $50,000,000 in Net Proceeds from Transfers of real estate) to and including the date on which such Transfer occurs, exceeds 30% of Consolidated Total Assets, determined as of the end of the fiscal year immediately preceding such Transfer; provided that there shall be excluded from any determination of a “substantial part” (a) any Transfer of assets in the ordinary course of business which are no longer necessary or required in the conduct of the Borrower’s business;
(iii) any sale, transfer or lease of assets by any Subsidiary of the Borrower to the Borrower or another Loan Party;
(iv) any sale, transfer or lease of assets in the ordinary course of business which are replaced by substitute assets acquired or leased;
(v) any sale, transfer, or lease of assets the after-tax proceeds of which, when added to the after-tax proceeds of other sales, transfers Parties and leases of assets in the same fiscal year, do not exceed, in the aggregate for Borrower and its their Subsidiaries, 5% and (b) so long as no Potential Default or Event of Borrower’s consolidated total assets at the start of such fiscal year;
(vi) the sale of receivables by the Subsidiaries of Borrower to CitibankDefault shall exist, N.A. or General Electric Capital Corporation - Trade Payables Services Division under the arrangements set forth on Schedule 1.1(P) [Permitted Liens]; provided that the amount of outstanding receivables sold under such arrangements shall not at any time exceed $5,000,000 in the aggregate; and
(vii) any sale, transfer or lease of assets, other than those specifically excepted pursuant to clauses
(i) through from a Loan Party to another Loan Party or any wholly owned Non-Loan Party Subsidiary, or (viii) abovefrom any Non-Loan Party Subsidiary to a Loan Party or to another wholly owned Non-Loan Party Subsidiary or any other Subsidiary with the same percentage ownership by the Parent as the transferor. Notwithstanding the foregoing, which is approved by (1) this Section 8.2.7 shall not apply to or restrict Sale and Leaseback Transactions; provided the Required Banks if no Security Event exists Borrower shall comply with Section 8.2.1(vii), to the extent applicable, and is continuing Section 8.2.14 [Sale and (2) all Banks if a Security Event exists and is continuingLeaseback Transactions].
Appears in 1 contract
Dispositions of Assets or Subsidiaries. The Borrower Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or general intangibles with or without recourse or of capital stock, shares of beneficial interest or interest, partnership interests or limited liability company interests or any other Equity Interest of a Subsidiary of the Borrowersuch Loan Party), except:
(i) transactions involving the sale or lease of inventory in the ordinary course of business;
(ii) any sale, transfer or lease of assets in the ordinary course of business which are no longer necessary or required or useful in the conduct of the Borrower’s such Loan Party's or such Subsidiary's business;
(iii) any sale, transfer or lease of assets by any wholly owned Subsidiary of the Borrower such Loan Party to the Borrower or another Loan Party;
(iv) any salesubject to the mandatory prepayment requirement set forth in Section 5.7.6(i), transfer or lease of assets in the ordinary course of business which are replaced by substitute assets acquired or leased;
(v) any sale, transfer, lease or lease other disposition of ownership interest or assets; provided that:
(1) the fair market value of any ownership interests and/or assets sold, transferred, leased or disposed of pursuant to this clause (iv) (whether in a single transaction or aggregately) shall not exceed:
(A) until such time as the after-tax proceeds fair market value of which, when added to the after-tax proceeds of other all such sales, transfers and transfers, leases of assets in and/or dispositions made by the same fiscal year, do not exceed, Loan Parties equals $60,000,000 in the aggregate ("Initial Disposition Threshold"), $60,000,000; and
(B) for Borrower and its Subsidiariesall periods after the Initial Disposition Threshold has been met, 5an amount equal to 7.5% of Borrower’s consolidated the total net book value of the Loan Parties’ assets at (excluding intangible assets); and
(2) notwithstanding clause (1) above, the start aggregate fair market value of all such fiscal year;sales, transfers, leases and/or other dispositions of ownership interests and/or assets made during the term of this Agreement shall not, in any event, exceed $120,000,000 singularly or in the aggregate.
(v) [Reserved]; and
(vi) subject to the sale of receivables by the Subsidiaries of Borrower to Citibank, N.A. or General Electric Capital Corporation - Trade Payables Services Division under the arrangements mandatory prepayment requirement set forth on Schedule 1.1(P) [Permitted Liens]; provided that the amount of outstanding receivables sold under such arrangements shall not at any time exceed $5,000,000 in the aggregate; and
(vii) Section 5.7.6(i), any sale, transfer or lease of assets, other than those specifically excepted pursuant to clauses (i) through (viiv) above, which is approved by (1) the Required Banks if no Security Event exists and is continuing and (2) all Banks if a Security Event exists and is continuingLenders.
Appears in 1 contract
Samples: Credit Agreement (Foster L B Co)
Dispositions of Assets or Subsidiaries. The Borrower None of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, sell, convey, assign, lease, sell and leaseback, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including sale, assignment, discount or other disposition of accounts, contract rights, chattel paperAccounts, equipment or general intangibles with or without recourse or of capital stock, shares of beneficial interest interest, partnership interests or partnership limited liability company interests of a Subsidiary of the Borrower)such Loan Party) or grant options or rights of first refusal in its assets, except:
(i) transactions involving the sale of inventory in the ordinary course of business;
(ii) any sale, transfer transfer, lease, sublease or lease license of assets in the ordinary course of business which are no longer necessary or required in the conduct of such Loan Party’s business or the Borrower’s businessgrant in the ordinary course of business of any non-exclusive easements, permits, licenses, rights of way, surface leases or other surface rights or interests;
(iii) any sale, transfer or lease of assets by any Subsidiary of the Borrower Loan Party to the Borrower or another Loan Party;
(iv) any sale, transfer or lease of assets, so long as (A) within two hundred and seventy (270) days following any such sale, transfer or lease, the assets in that were the ordinary course of business which subject thereof are replaced by or subject to contractual obligation for the replacement by, substitute, replacement or other assets of the type used in any Loan Party’s business, and (B) all such substitute assets acquired are subject to the Collateral Trustee’s Prior Security Interest for the benefit of the Secured Parties to the extent such substitute assets are required to be part of the Collateral pursuant to this Agreement or leasedthe other Loan Documents; provided that the fair market value of all assets sold, transferred or leased under this clause in any given fiscal year shall not exceed $250,000,000 (for purposes of this Section, so long as an option or right of first refusal is in effect with respect to certain assets, it shall be treated as a disposition on the date that the option or right of first refusal is granted);
(v) any sale, transfer, sale of Accounts or lease of assets the after-tax proceeds of which, when added contracts giving rise to Accounts pursuant to the after-tax proceeds of other salesPermitted Receivables Financing to or by the Securitization Subsidiary, transfers and leases of assets in the same fiscal year, do not exceed, in the aggregate for Borrower and its Subsidiaries, 5% of Borrower’s consolidated total assets provided that at the start time of any such fiscal yearsale no Event of Default shall exist or shall result from such sale after giving effect thereto;
(vi) the any sale of receivables Accounts arising from the export outside of the U.S. of goods or services by any Loan Party, provided that at the Subsidiaries time of Borrower to Citibankany such sale, N.A. no Event of Default or General Electric Capital Corporation - Trade Payables Services Division under Potential Default shall exist or shall result from such sale after giving effect thereto;
(vii) any lease, sublease or license of assets (with a Loan Party as the arrangements set forth on Schedule 1.1(Plessor, sublessor or licensor) [Permitted Liens]; in the ordinary course of business, provided that the amount interests of outstanding receivables sold under the Loan Parties in any such arrangements shall not at any time exceed $5,000,000 in lease, sublease or license are subject to the aggregate; andLenders’ Prior Security Interest;
(viiviii) any sale, transfer or lease of assets, other than those specifically excepted pursuant to clauses (i) through (vivii) aboveabove or (ix) through (xiv) below, which is approved by so long as (A) the sum of (1) the Required Banks if no Security Event exists and is continuing and Net Cash Proceeds of such sale, plus (2) all Banks if other Net Cash Proceeds from sales, transfers or leases of assets calculated for the period from the Closing Date through and including the date of determination, does not exceed an aggregate amount of $250,000,000 less (without duplication) the fair market value of assets contributed in the form of Investments pursuant to Section 8.2.4(viii) subsequent to the Closing Date (for purposes of this Section, so long as an option or right of first refusal is in effect with respect to certain assets, it shall be treated as a Security disposition on the date that the option or right of first refusal is granted), and (B) notification of any such sale, transfer or lease of assets shall be included within the Borrower’s Compliance Certificate delivered pursuant to Section 8.3.4 [Certificate of the Borrower] for each fiscal quarter in which any such sale, transfer or lease of assets has occurred;
(ix) Permitted Coal Properties Dispositions so long as the Borrower shall have delivered an Appraisal to the Administrative Agent demonstrating Collateral Coverage greater than or equal to 2.5 to 1.0 after giving effect to each such disposition;
(x) dispositions pursuant to clauses (i), (ii) or (iii)(B) of the definition of Permitted Gas Properties Disposition so long as no Potential Default or Event exists of Default is then in existence or will result therefrom;
(xi) dispositions pursuant to clause (iii)(A) of the definition of Permitted Gas Properties Disposition, so long as:
(A) no Potential Default or Event of Default is then in existence or will result therefrom,
(B) the Loan Parties shall deliver to the Administrative Agent at least five (5) Business Days before such sale, transfer or lease a certificate of the Borrower evidencing pro forma compliance with the covenants contained in Section 8.2.15 [Maximum Leverage Ratio], Section 8.2.16 [Minimum Interest Coverage Ratio] and Section 8.2.17 [Maximum Senior Secured Leverage Ratio],
(C) the Borrower shall have delivered an Appraisal to the Administrative Agent demonstrating Collateral Coverage greater than or equal to 2.5 to 1.0 after giving effect to such disposition and such Appraisal shall have been conducted and shall be dated no earlier than two (2) years prior to the date of such disposition, and
(D) the Borrower has Availability in excess of $250,000,000 after giving effect to such disposition.
(xii) the sale, transfer or lease of Non-Strategic Assets so long as no Potential Default or Event of Default is continuingthen in existence or will result therefrom and, in the event that the Net Cash Proceeds of such sale, transfer, or lease exceeds the Threshold Amount, the Loan Parties shall deliver to the Administrative Agent at least five (5) Business Days before such sale, transfer or lease a certificate of the Borrower evidencing pro forma compliance with the covenants contained in Section 8.2.15 [Maximum Leverage Ratio], Section 8.2.16 [Minimum Interest Coverage Ratio] and Section 8.2.17 [Maximum Senior Secured Leverage Ratio];
(xiii) the sale, transfer or lease of all or any portion of the Baltimore Dock Facility so long as no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such sale, transfer or lease; and
(xiv) prior to a Permitted Gas Properties Disposition described in clause (iii)(A) of the definition thereof, any sale, transfer or lease of Gas Properties other than those specifically excepted pursuant to clauses (i) through (xiii) above, provided that the fair market value of all Gas Properties sold, transferred or leased under this clause in any given fiscal year shall not exceed $25,000,000.
(xv) dispositions of capital stock of CNX Gas to CNX Gas Merger Sub made in anticipation of the CNX Gas Merger; provided, that (1) any such disposition shall be made subject to the Liens created in connection with this Agreement and the Pledge Agreement in favor of the Collateral Trustee for the benefit of the Secured Parties, (2) within five (5) Business Days after such disposition, either the CNX Gas Merger shall have been completed or the capital stock of CNX Gas that was transferred to CNX Gas Merger Sub shall be transferred to a Loan Party, and (3) within ten (10) Business Days after such disposition to the CNX Gas Merger Sub, the Loan Parties shall either provide evidence reasonably satisfactory to the Administrative Agent of continued perfection of the Lien of the Pledge Agreement or cause to be perfected the Lien of the Pledge Agreement on all capital stock of CNX Gas held by the Loan Parties.
Appears in 1 contract
Dispositions of Assets or Subsidiaries. The Borrower Borrowers shall not, and shall not permit any of its their Subsidiaries to, sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or general intangibles with or without recourse or of capital stock, shares of beneficial interest or partnership interests of a Subsidiary of the any Borrower), except:
(i) transactions involving the sale of inventory in the ordinary course of business;
(ii) any sale, transfer or lease of assets in the ordinary course of business which are no longer necessary or required in the conduct of the any Borrower’s 's or such Subsidiary's business;
(iii) any sale, transfer or lease of assets by (a) any Subsidiary of the a Borrower to the such Borrower or another Loan PartyParty or (b) any non-Loan Party Subsidiary to another non-Loan Party Subsidiary;
(iv) any sale, transfer or lease of assets in the ordinary course of business which are replaced by substitute assets acquired or leased; provided such substitute assets are subject to the Banks' Prior Security Interest to the extent such substitute assets are required to become Collateral hereunder or under any of the Loan Documents;
(v) any sale, transfer, or lease of assets the after-tax proceeds of which, when added to the after-tax proceeds of other sales, transfers and leases of assets in the same fiscal year, other than the Specified Asset Sales, do not exceed, in the aggregate for Borrower TGI and its Subsidiaries, 5% of Borrower’s TGI's consolidated total assets at the start of such fiscal year;
(via) the sale Payment Discount Arrangements and (b) sales of receivables by Purchased Receivables (as defined in the Subsidiaries BTMU Purchase Agreement); provided, that in the case of Borrower to Citibankthis clause (b), N.A. or General Electric Capital Corporation - Trade Payables Services Division under (x) the arrangements set forth on Schedule 1.1(POutstanding Purchase Price (as defined in the BTMU Purchase Agreement) [Permitted Liens]; provided that the amount of outstanding receivables sold under such arrangements shall not at any time shall not exceed $5,000,000 90,000,000, (y) the BTMU Cost of Funds Rate (as defined in the aggregate; andBTMU Purchase Agreement) shall not exceed the Euro-Rate with respect to a Dollar Loan with an Interest Period of one month by more than 1.0% (or such greater amount as agreed to by the Administrative Agent) and (z) the BTMU Purchase Agreement may not be amended or modified without the prior written consent of the Administrative Agent;
(vii) any sale, transfer or lease of assets, other than those specifically excepted pursuant to clauses (i) through (vi) above, which is approved by the Required Banks;
(1viii) to the extent done as part of the Receivables Facility, the sale, contribution, transfer, conveyance or assignment of Receivables and Related Rights by TGI and its Subsidiaries to the SP Sub and the sale by the SP Sub of individual variable percentage interests in the Purchased Interests to the Purchaser; and
(ix) the Required Banks if no Security Event exists and is continuing and sale or transfer of equipment in connection with a sale - leaseback transaction in which a Loan Party incurs Capital Lease Obligations provided the Loan Parties remain in compliance with Section 8.2.1(i)(g);
(2x) all Banks if to the extent pursuant to a Security Event exists and is continuingdissolution, liquidation or winding-up permitted by 8.2.6(iii) above;
(xi) any conveyance, transfer or contribution of Capital Stock of a Subsidiary permitted by Section 8.2.4(viii) above; and
(xii) the Specified Asset Sales.
Appears in 1 contract
Samples: Credit Agreement (Triumph Group Inc)
Dispositions of Assets or Subsidiaries. The Borrower --- -------------------------------------- shall not, and shall not permit any of its Subsidiaries the other Loan Parties to, sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including but not limited to sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or general intangibles with or without recourse or of capital stock, shares of beneficial interest or partnership interests of a Subsidiary of the Borrower), except:
(i) transactions involving the sale of inventory in the ordinary course of business;
(ii) any sale, transfer or lease of assets in the ordinary course of business which are no longer necessary or required in in, or which are not material to, the conduct of the Borrower’s 's or such Subsidiary's business, provided that such sales, transfers or leases of assets shall not exceed in the aggregate for the Borrower and its Subsidiaries $10,000,000 (based upon fair market value at the time of the sale) for the period from and after the Eighteenth Amendment Effective Date;
(iiiii) any sale, transfer or lease of assets by any Subsidiary of the Borrower wholly- owned Loan Party to the Borrower or another any other wholly owned Loan Party (or by the Borrower to a wholly owned Loan Party);
(iviii) any sale, transfer or lease of assets in the ordinary course of business which are replaced by substitute assets acquired or leasedleased within the parameters of Section 8.02(w) provided such substitute assets are subject to the Banks' Prior Security Interest;
(iv) any sale or transfer of assets which are obsolete or no longer used or useful in the business of the Borrower or its Subsidiaries; provided that such sales, transfers or dispositions shall not exceed, in any fiscal year, $1,000,000 in the aggregate for the Borrower and its Subsidiaries;
(v) any sale, transfer, or lease of assets the after-tax proceeds of which, when added to the after-tax proceeds of other sales, transfers and leases of assets in the same fiscal year, do not exceed, in the aggregate for Borrower and its Subsidiaries, 5% of Borrower’s consolidated total assets at the start of such fiscal year;
(vi) the sale of receivables by the Subsidiaries of Borrower to Citibank, N.A. or General Electric Capital Corporation - Trade Payables Services Division under the arrangements set forth on Schedule 1.1(P) [Permitted Liens]; provided that the amount of outstanding receivables sold under such arrangements shall not at any time exceed $5,000,000 in the aggregate; and
(vii) any sale, transfer or lease of assets, other than those specifically excepted pursuant to clauses (i) through (viiv) above, which either: (A) has aggregate Net Sale Proceeds for the Borrower and its Subsidiaries for the period from and after the Closing Date which do not exceed $35,000,000 or (B) is approved by (1) the Required Banks if so long as in the case of a transaction under clause (A) or (B), the Borrower complies with all of the following: (w) the proceeds received by the applicable Loan Party shall equal the fair market value of the asset sold, transferred or leased, (x) the proceeds of such sale, transfer or lease are applied as a mandatory prepayment of the Loans in accordance with the provisions of Section 5.05 of this Agreement, (y) after giving effect to such proposed disposition, no Security Event exists of Default or Potential Default shall have occurred and is continuing be continuing, and (2z) after giving effect to such proposed disposition (and without limiting the generality of the foregoing clause (y)), the Borrower is in compliance (and with respect to sales, transfers or leases of assets which individually or in a series of related transactions equal or exceed $5,000,000, the Borrower demonstrates such compliance to the Administrative Agent in detail reasonably satisfactory to the Administrative Agent by the delivery to the Administrative Agent, at least five (5) days prior to such transaction of a compliance certificate,) on a pro-forma basis, after giving effect to such sale, transfer or lease, with the financial covenants set forth in Sections 8.02(q), (r), (s), (t) and (u); and
(vi) any distribution or dividend permitted under Section 8.02 (e) (iv), (v) (vi), or (vii). For purposes of this Section 8.02(g) and the demonstration of pro forma compliance with the financial covenants set forth in Sections 8.02(q), (r), (s), (t) and (u):
(i) Consolidated Net Worth, Adjusted Total Indebtedness and Total Indebtedness shall be calculated as of each date of determination (after giving effect to the proposed sale, transfer or lease of assets);
(ii) Consolidated Cash Flow from Operations and Consolidated Net Income shall be calculated as of each date of determination based upon the four fiscal quarters most recently then ended for which a Compliance Certificate has been delivered to the Administrative Agent, but excluding therefrom all Banks if a Security Event exists amounts attributable to the assets sold, transferred or leased; and
(iii) the denominator (set forth in clause (y) of Section 8.02(q)) of the Fixed Charge Coverage Ratio shall be determined after giving effect to the proposed sale, transfer or lease of assets for purposes of the pro forma determination of interest expense and is continuingof current maturities of long-term Indebtedness.
Appears in 1 contract
Dispositions of Assets or Subsidiaries. The Borrower Borrowers shall not, and shall not permit any of its their Subsidiaries to, sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or general intangibles with or without recourse or of capital stock, shares of beneficial interest or partnership interests of a Subsidiary of the any Borrower), except:
(i) transactions involving the sale of inventory in the ordinary course of business;
(ii) any sale, transfer or lease of assets in the ordinary course of business which are no longer necessary or required in the conduct of the any Borrower’s 's or such Subsidiary's business;
(iii) any sale, transfer or lease of assets by (a) any Subsidiary of the a Borrower to the such Borrower or another Loan PartyParty or (b) any non-Loan Party Subsidiary to another non-Loan Party Subsidiary;
(iv) any sale, transfer or lease of assets in the ordinary course of business which are replaced by substitute assets acquired or leased; provided such substitute assets are subject to the Banks' Prior Security Interest to the extent such substitute assets are required to become Collateral hereunder or under any of the Loan Documents;
(v) any sale, transfer, or lease of assets the after-tax proceeds of which, when added to the after-tax proceeds of other sales, transfers and leases of assets in the same fiscal year, do not exceed, in the aggregate for Borrower TGI and its Subsidiaries, 5% of Borrower’s TGI's consolidated total assets at the start of such fiscal year;
(via) the sale Payment Discount Arrangements and (b) sales of receivables by Purchased Receivables (as defined in the Subsidiaries BTMU Purchase Agreement); provided, that in the case of Borrower to Citibankthis clause (b), N.A. or General Electric Capital Corporation - Trade Payables Services Division under (x) the arrangements set forth on Schedule 1.1(POutstanding Purchase Price (as defined in the BTMU Purchase Agreement) [Permitted Liens]; provided that the amount of outstanding receivables sold under such arrangements shall not at any time shall not exceed $5,000,000 90,000,000, (y) the BTMU Cost of Funds Rate (as defined in the aggregate; andBTMU Purchase Agreement) shall not exceed the Euro-Rate with respect to a Dollar Loan with an Interest Period of one month by more than 1.0% (or such greater amount as agreed to by the Administrative Agent) and (z) the BTMU Purchase Agreement may not be amended or modified without the prior written consent of the Administrative Agent;
(vii) any sale, transfer or lease of assets, other than those specifically excepted pursuant to clauses (i) through (vi) above, which is approved by the Required Banks;
(1viii) to the extent done as part of the Receivables Facility, the sale, contribution, transfer, conveyance or assignment of Receivables and Related Rights by TGI and its Subsidiaries to the SP Sub and the sale by the SP Sub of individual variable percentage interests in the Purchased Interests to the Purchaser; and
(ix) the Required Banks if no Security Event exists and is continuing and sale or transfer of equipment in connection with a sale - leaseback transaction in which a Loan Party incurs Capital Lease Obligations provided the Loan Parties remain in compliance with Section 8.2.1(i)(g);
(2x) all Banks if to the extent pursuant to a Security Event exists and is continuingdissolution, liquidation or winding-up permitted by 8.2.6(iii) above; and
(xi) Any conveyance, transfer or contribution of Capital Stock of a Subsidiary permitted by Section 8.2.4(viii) above.
Appears in 1 contract
Samples: Credit Agreement (Triumph Group Inc)
Dispositions of Assets or Subsidiaries. The Borrower BorrowerLoan Parties shall not, and shall not permit any of its itstheir Subsidiaries (other than any Unrestricted Subsidiary) to, sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any substantial part (as defined below) of its itstheir properties or assets, tangible or intangible (including the sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or general intangibles with or without recourse or of capital stockequity interests, shares of beneficial interest interest, partnership interests or partnership limited liability company interests of a Subsidiary of the BorrowerBorrower or its Subsidiaries), except:
(i) transactions involving the sale of inventory in the ordinary course of business;
(ii) any sale, transfer or lease of assets in the ordinary course of business which are no longer necessary or required in the conduct of the Borrowersuch Loan Party'sParty’s or such Subsidiary'sSubsidiary’s business;
(iii) any sale, transfer or lease of assets by any Wholly-Owned Subsidiary of the Borrower a Loan Party or its Subsidiaries to the Borrower a Loan Party or another Loan Partyits Subsidiaries;
(iv) any sale, transfer or lease of assets by, or the equity of, a Project Mining Subsidiary to its customers as provided for in the ordinary course applicable mining or sales agreement, provided that no Event of business which are replaced by substitute assets acquired Default shall have occurred and be continuing at the time of such proposed transaction or leased;would result therefrom; and
(v) any salesale or disposition of Bisti Fuels Company, transferLLC and/or Shondenah Energy, or lease LLC to its customer in connection with the termination of assets the after-tax proceeds of which, when added to the after-tax proceeds of other sales, transfers and leases of assets in the same fiscal year, do not exceed, in the aggregate for Borrower and its Subsidiaries, 5% of Borrower’s consolidated total assets at the start of such fiscal year;
(vi) the sale of receivables by the Subsidiaries of Borrower to Citibank, N.A. or General Electric Capital Corporation - Trade Payables Services Division under the arrangements set forth on Schedule 1.1(P) [Permitted Liens]; provided that the amount of outstanding receivables sold under such arrangements shall not at any time exceed $5,000,000 in the aggregateapplicable contract mining agreement; and
(vii) any sale, transfer or lease of assets, other than those specifically excepted pursuant to clauses (i) through (vi) above, which is approved by (1) the Required Banks if no Security Event exists and is continuing and (2) all Banks if a Security Event exists and is continuing.
Appears in 1 contract
Dispositions of Assets or Subsidiaries. The Borrower shall not, and shall not permit any of its Subsidiaries the other Loan Parties to, sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including but not limited to sale, assignment, discount or other disposition of accounts, contract rights, chattel paper, equipment or general intangibles with or without recourse or of capital stock, shares of beneficial interest or partnership interests of a Subsidiary of the BorrowerSubsidiary), except:
(i) transactions involving the sale of inventory in the ordinary course of business;
(ii) any sale, transfer or lease of assets in the ordinary course of business which are no longer necessary or required in in, or which are not material to, the conduct of the Borrower’s 's or such Subsidiary's business;
(iiiii) any sale, transfer or lease of assets by any Subsidiary of the Borrower wholly owned Loan Party to the Borrower or another any other wholly owned Loan Party (or by the Borrower to a wholly owned Loan Party);
(iviii) any sale, transfer or lease of assets in the ordinary course of business which are replaced by substitute assets acquired or leasedleased within the parameters of Section 8.02(p) provided such substitute assets are subject to the Banks' Prior Security Interest;
(viv) any sale, transfer, sale or lease transfer of assets which are obsolete or no longer used or useful in the after-tax proceeds business of which, when added to the after-tax proceeds of other Borrower or its Subsidiaries; provided that such sales, transfers and leases of assets in the same fiscal year, do or dispositions shall not exceed, in any fiscal year, $1 million in the aggregate for the Borrower and its Subsidiaries, 5% of Borrower’s consolidated total assets at the start of such fiscal year;; or
(vi) the sale of receivables by the Subsidiaries of Borrower to Citibank, N.A. or General Electric Capital Corporation - Trade Payables Services Division under the arrangements set forth on Schedule 1.1(P) [Permitted Liens]; provided that the amount of outstanding receivables sold under such arrangements shall not at any time exceed $5,000,000 in the aggregate; and
(viiv) any sale, transfer or lease of assets, other than those specifically excepted pursuant to clauses (i) through (viiv) above, which is approved by (1) the Required Banks if so long as (x) the proceeds of such sale, transfer or lease are applied as a mandatory prepayment of the Loans to the extent required by the provisions of Section 5.05 of this Agreement, (y) after giving effect to such proposed disposition, no Security Event exists of Default shall have occurred and is continuing be continuing, and (2z) after giving effect to such proposed disposition (and without limiting the generality of the foregoing clause (y)), the Borrower is in compliance (and, with respect to sales, transfers or leases of assets of Subsidiaries which are not Material Subsidiaries, which sales, transfers or leases individually or in the aggregate exceed $10 million for the period from the date hereof through and including the Expiration Date, the Borrower demonstrates such compliance to the Agent in detail reasonably satisfactory to the Agent) with the leverage ratio set forth in Section 8.02(r). For purposes of this Section 8.02(g)(v), the leverage ratio set forth in Section 8.02(r) shall be calculated as follows:
(i) Indebtedness of the Borrower and its Subsidiaries shall be determined as of the date of the proposed disposition, after giving effect thereto, and (ii) Consolidated Cash Flow from Operations shall be calculated for the twelve-month period ending on the last day of the fiscal quarter of the Borrower which precedes such date of disposition but shall exclude therefrom all Banks if a Security Event exists and is continuingamounts attributable to the assets which are sold, transferred or leased.
Appears in 1 contract
