Common use of Dispositions of Assets Clause in Contracts

Dispositions of Assets. Company shall not, and shall not permit any of its Subsidiaries to, sell, lease, assign, or otherwise dispose of any assets of Company or any of its Subsidiaries in an Asset Sale, or otherwise consummate any Asset Sale, except so long as there exists no Default or Event of Default, and no Default or Event of Default would be caused thereby, Company and its Subsidiaries may consummate Asset Sales for fair market value in an aggregate amount not to exceed during any period of four consecutive fiscal quarters 25% of Total Assets (calculated as an amount equal to the result of (a) the sum of Total Assets as of the first day of each fiscal quarter during such four quarter period (b) divided by four), provided that the Asset Sale Proceeds in excess of $3,000,000 of each Asset Sale (including in respect of an Asset Securitization) which occurs after the Closing Date are applied as provided in Section 2.5(b) hereof; provided that, notwithstanding anything herein to the contrary, (i) Company will not dispose of any assets at any time in an amount that would impair or jeopardize the status of Company as a Real Estate Investment Trust and (ii) the market value of any assets sold in an Asset Securitization shall be excluded from the calculation of assets disposed of in Asset Sales for purposes of the 25% limitation set forth in this Section 6.6. On the day of any Asset Sale by Company or its Subsidiaries in which the Asset Sale Proceeds thereof exceed $3,000,000, Company shall deliver to Administrative Agent a certificate of an Authorized Officer certifying as to the amount of gross proceeds thereof and costs and expenses payable thereof which were deducted in determining the Asset Sale Proceeds." (f) Section 6.10 of the Credit Agreement is hereby amended to read as follows:

Dispositions of Assets. Company shall not, and shall not permit any of its Subsidiaries to, sell, lease, assign, or otherwise dispose of any assets of Company or any of its Subsidiaries in an Asset Sale, or otherwise consummate any Asset Sale, except so long as there exists no Default or Event of Default, and no Default or Event of Default would be caused thereby, Company and its Subsidiaries may consummate Asset Sales for fair market value in an aggregate amount not to exceed during any period of four consecutive fiscal quarters 25% of Total Assets (calculated as an amount equal to the result of (a) the sum of Total Assets as of the first day of each -52- fiscal quarter during such four quarter period (b) divided by four), provided that the Asset Sale Proceeds in excess of $3,000,000 of each Asset Sale (including in respect of an Asset Securitization) which occurs after on a date on which the Closing Date Amended and Restated Credit Agreement is no longer in effect are applied as provided in Section 2.5(b) hereof; provided that, notwithstanding anything herein to the contrary, (i) Company will not dispose of any assets at any time in an amount that would could impair or jeopardize the status of Company as a Real Estate Investment Trust and (ii) the market value of any assets sold in an Asset Securitization shall be excluded from the calculation of assets disposed of in Asset Sales for purposes of the 25% limitation set forth in this Section 6.6Trust. On the day of any Asset Sale by Company or its Subsidiaries in which the Asset Sale Sales Proceeds thereof exceed $3,000,000, Company shall deliver to Administrative Agent a certificate of an Authorized Officer certifying as to the amount of gross proceeds thereof and costs and expenses payable thereof which were deducted in determining the Asset Sale Proceeds." (f) Section 6.10 of the Credit Agreement is hereby amended to read as follows:

Dispositions of Assets. Company shall not, and shall not permit any of its Subsidiaries to, sell, lease, assign, or otherwise dispose of any assets of Company or any of its Subsidiaries in an Asset Sale, or otherwise consummate any Asset Sale, except so long as there exists no Default or Event of Default, and no Default or Event of Default would be caused thereby, Company and its Subsidiaries may consummate Asset Sales for fair market value in an aggregate amount not to exceed during any period of four consecutive fiscal quarters 25% of Total Assets (calculated as an amount equal to the result of (a) the sum of Total Assets as of the first day of each fiscal quarter during such four quarter period (b) divided by four), provided that the Asset Sale Proceeds in excess of $3,000,000 of each Asset Sale (including in respect of an Asset Securitization) which occurs after the Closing Date are applied as provided in Section 2.5(b) hereof; provided that, notwithstanding anything herein to the contrary, (i) Company will not dispose of any assets at any time in an amount that would could impair or jeopardize the status of Company as a Real Estate Investment Trust and (ii) the market value of any assets sold in an Asset Securitization shall be excluded from the calculation of assets disposed of in Asset Sales for purposes of the 25% limitation set forth in this Section 6.6Trust. On the day of any Asset Sale by Company or its Subsidiaries in which the Asset Sale Sales Proceeds thereof exceed $3,000,000, Company shall deliver to Administrative Agent a certificate of an Authorized Officer certifying as to the amount -54- of gross proceeds thereof and costs and expenses payable thereof which were deducted in determining the Asset Sale Proceeds." (f) Section 6.10 of the Credit Agreement is hereby amended to read as follows:

Dispositions of Assets. Company shall not, and shall not permit any of its Subsidiaries to, sell, lease, assign, or otherwise dispose of any assets of Company or any of its Subsidiaries in an Asset Sale, or otherwise consummate any Asset Sale, except so long as there exists no Default or Event of Default, and no Default or Event of Default would be caused thereby, Company and its Subsidiaries may consummate Asset Sales for fair market value in an aggregate amount not to exceed during any period of four consecutive fiscal quarters 25% of Total Assets (calculated as an amount equal to the result of (a) the sum of Total Assets as of the first day of each fiscal quarter during such four quarter period (b) divided by four), provided that the Asset Sale Proceeds in excess of $3,000,000 of each Asset Sale (including in respect of an Asset Securitization) which occurs after the Closing Date are applied as provided in Section 2.5(bSECTION 2.5(B) hereof; provided that, notwithstanding anything herein to the contrary, (i) Company will not dispose of any assets at any time in an amount that would impair or jeopardize the status of Company as a Real Estate Investment Trust and (ii) the market value of any assets sold in an Asset Securitization shall be excluded from the calculation of assets disposed of in Asset Sales for purposes of the 25% limitation set forth in this Section SECTION 6.6. On the day of any Asset Sale by Company or its Subsidiaries in which the Asset Sale Proceeds thereof exceed $3,000,000, Company shall deliver to Administrative Agent a certificate of an Authorized Officer certifying as to the amount of gross proceeds thereof and costs and expenses payable thereof which were deducted in determining the Asset Sale Proceeds." (f) Section 6.10 of the Credit Agreement is hereby amended to read as follows:

Dispositions of Assets. Company shall not, and shall not permit any of its Subsidiaries to, sell, lease, assign, or otherwise dispose of any assets of Company or any of its Subsidiaries in an Asset Sale, or otherwise consummate any Asset Sale, except so long as there exists no Default or Event of Default, and no Default or Event of Default would be caused thereby, Company and its Subsidiaries may consummate Asset Sales for fair market value in an aggregate amount not to exceed during any period of four consecutive fiscal quarters 25% of Total Assets (calculated as an amount equal to the result of (a) the sum of Total Assets as of the first day of each fiscal quarter during such four quarter period (b) divided by four), provided that prior to the Conversion Date, the Asset Sale Proceeds in excess of $3,000,000 of each Asset Sale (including in respect of an Asset Securitization) which occurs after the Closing Date are applied as provided in Section 2.5(b) hereof; provided that, notwithstanding anything herein to the contrary, (i) Company will not dispose of any assets at any time in an amount that would could impair or jeopardize the status of Company as a Real Estate Investment Trust and (ii) the market value of any assets sold in an Asset Securitization shall be excluded from the calculation of assets disposed of in Asset Sales for purposes of the 25% limitation set forth in this Section 6.6Trust. On the day of any Asset Sale by Company or its Subsidiaries in which the Asset Sale Sales Proceeds thereof exceed $3,000,000, Company shall deliver to Administrative Agent a certificate of an Authorized Officer certifying as to the amount of gross proceeds thereof and costs and expenses payable thereof which were deducted in determining the Asset Sale Proceeds." (f) Section 6.10 of the Credit Agreement is hereby amended to read as follows:

Dispositions of Assets. Company Borrower shall not, and shall not permit any of its Subsidiaries tocause each Material Subsidiary to not, sell, lease, assignor dispose of (whether in one or a series of transactions) all or any substantial portion of its businesses or assets or of any Collateral (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except: (a) sales of inventory in the ordinary course of business; (b) Borrower and any Subsidiary may enter into agreements to sell, lease, or otherwise dispose of all or any substantial portion of its businesses or assets or of Company any Collateral; provided that any material performance of Borrower or such Subsidiary under such agreements is expressly conditioned on the receipt by Borrower or such Subsidiary of certain third-party consents, which Borrower acknowledges and agrees shall include the consent of Lender; (c) any Subsidiary may sell, lease or otherwise transfer any of its Subsidiaries assets to Borrower or any wholly-owned Subsidiary; (d) licensing and leasing of assets in an Asset Sale, or otherwise consummate any Asset Sale, except so long as there exists no Default or Event the ordinary course of Default, and no Default or Event of Default would be caused thereby, Company and its Subsidiaries may consummate Asset Sales for fair market value in an aggregate amount not to exceed during any period of four consecutive fiscal quarters 25% of Total Assets (calculated as an amount equal to the result of (a) the sum of Total Assets as of the first day of each fiscal quarter during such four quarter period (b) divided by four), business; provided that the Asset Sale Proceeds in excess of $3,000,000 of each Asset Sale (including in respect of an Asset Securitization) which occurs after the Closing Date are applied as provided in Section 2.5(b) hereof; provided that, notwithstanding anything herein to the contrary, (i) Company will not dispose the term of any assets at any time in an amount that would impair such license or jeopardize the status of Company as a Real Estate Investment Trust lease does not exceed two years, and (ii) the fair market value of all assets licensed or leased shall not exceed Two Million Five Hundred Thousand Dollars ($5,000,000) in the aggregate at any one time; (e) sales, leases or other dispositions of obsolete assets sold or assets no longer used or useful in an Asset Securitization shall be excluded from the calculation business of assets disposed of in Asset Sales for purposes of the 25% limitation set forth in this Section 6.6. On the day of any Asset Sale by Company or Borrower and its Subsidiaries in which the Asset Sale Proceeds thereof exceed $3,000,000, Company shall deliver to Administrative Agent a certificate of an Authorized Officer certifying as to the amount of gross proceeds thereof and costs and expenses payable thereof which were deducted in determining the Asset Sale Proceeds."Subsidiaries; and (f) sales or other dispositions of assets or property; provided that (i) the fair market value of such assets or property does not exceed One Million Five Hundred Thousand Dollars ($1,500,000) in the aggregate during any fiscal year and (ii) the Net Proceeds from the sale or other disposition of such assets are, within 180 days after the receipt thereof by Borrower or such Subsidiary, (A) applied to (or contractually committed to) the purchase price or the cost of construction or refurbishment of replacement equipment or (B) applied against Term Loan principal in accordance with Section 6.10 of the Credit Agreement is hereby amended to read as follows:2.5(b).

Dispositions of Assets. Company shall Holdings will not, and shall will not permit any of its the Subsidiaries to, sellbecome a party to or agree to or effect any Asset Sale, leaseother than (a) the sale of inventory and the disposition of obsolete assets, assignin each case in the ordinary course of business consistent with past practices, (b) Sale-Leaseback transactions permitted pursuant to subsection 6.7, (c) the sale of unprofitable stores and (d) Asset Sales of assets having a fair market value (determined in good faith by the board of directors of Holdings or otherwise the Company) not in excess of $5,000,000 (provided that the fair market value of any Casa Gallardo Restaurants and of the Ventura Property sold shall not reduce this amount) during any Fiscal Year or $10,000,000 (provided that the fair market value of any Casa Gallardo Restaurants and of the Ventura Property sold shall not reduce this amount) in the aggregate on a cumulative basis from the Closing Date; provided that, in each case under this clause (d), (i) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Holdings), (ii) not less than 75% of the consideration received therefor shall be cash and (iii) the Net Cash Proceeds of such Asset Sale shall be applied if and to the extent required by subsection 2.4B(iii). Nothing in this subsection 6.7B is intended to prohibit Holdings or any of the Subsidiaries from conditionally agreeing to dispose of any assets of Company or any of its Subsidiaries in an Asset Sale, or otherwise consummate any Asset Sale, except so long as there exists no Default or Event of Default, and no Default or Event of Default would be caused thereby, Company and its Subsidiaries may consummate Asset Sales for fair market value in an aggregate amount not to exceed during any period of four consecutive fiscal quarters 25% of Total Assets (calculated as an amount equal subject to the result of (a) the sum of Total Assets as prior approval of the first day of each fiscal quarter during Lenders if Holdings or such four quarter period (b) divided by four), provided Subsidiary will not be subject to any penalties in connection with such agreement in the event that the Asset Sale Proceeds in excess of $3,000,000 of each Asset Sale Lenders (including in respect of an Asset Securitization) which occurs after the Closing Date are applied as provided in Section 2.5(b) hereof; provided that, notwithstanding anything herein to the contrary, (i) Company will not dispose of any assets at any time in an amount that would impair or jeopardize the status of Company as a Real Estate Investment Trust and (ii) the market value of any assets sold in an Asset Securitization shall be excluded from the calculation of assets disposed of in Asset Sales for purposes all of the 25% limitation set forth in this Section 6.6. On Lenders, as the day of any Asset Sale by Company or its Subsidiaries in which the Asset Sale Proceeds thereof exceed $3,000,000, Company shall deliver case may require) do not consent to Administrative Agent a certificate of an Authorized Officer certifying as to the amount of gross proceeds thereof and costs and expenses payable thereof which were deducted in determining the Asset Sale Proceedssuch disposition." (f) Section 6.10 of the Credit Agreement is hereby amended to read as follows:

Dispositions of Assets. Company shall not, and shall not permit any of its Subsidiaries to, sell, lease, assign, or otherwise dispose of any assets of Company or any of its Subsidiaries in an Asset Sale, or otherwise consummate any Asset Sale, except so long as there exists no Default or Event of Default, and no Default or Event of Default would be caused thereby, Company and its Subsidiaries may consummate Asset Sales for fair market value in an aggregate amount not to exceed during any period of four consecutive fiscal quarters 25% of Total Assets (calculated as an amount equal to the result of (a) the sum of Total Assets as of the first day of each fiscal quarter during such four quarter period (b) divided by four), provided that the Asset Sale Proceeds in excess of $3,000,000 of each Asset Sale (including in respect of an Asset Securitizationexcluding any Loan Sale) which occurs after the -52- Closing Date are applied as provided in Section 2.5(bSECTION 2.5(B) hereof; provided that, notwithstanding anything herein to the contrary, (i) Company will not dispose of any assets at any time in an amount that would impair or jeopardize the status of Company as a Real Estate Investment Trust and (ii) the market value of any assets sold in an Asset Securitization or a Loan Sale shall be excluded from the calculation of assets disposed of in Asset Sales for purposes of the 25% limitation set forth in this Section SECTION 6.6. On the day of any Asset Sale (excluding any Loan Sale) by Company or its Subsidiaries in which the Asset Sale Proceeds thereof exceed $3,000,000, Company shall deliver to Administrative Agent a certificate of an Authorized Officer certifying as to the amount of gross proceeds thereof and costs and expenses payable thereof which were deducted in determining the Asset Sale Proceeds." (f) Section 6.10 of the Credit Agreement is hereby amended to read as follows:

Dispositions of Assets. Company shall not, and shall not permit any of its Subsidiaries to, sell, lease, assign, or otherwise dispose of any assets of Company or any of its Subsidiaries in an Asset Sale, or otherwise consummate any Asset Sale, except so long as there exists no Default or Event of Default, and no Default or Event of Default would be caused thereby, Company and its Subsidiaries may consummate Asset Sales for fair market value in an aggregate amount not to exceed during any period of four consecutive fiscal quarters 25% of Total Assets (calculated as an amount equal to the result of (a) the sum of Total Assets as of the first day of each fiscal quarter during such four quarter period (b) divided by four), provided that the Asset Sale Proceeds in excess of $3,000,000 of each Asset Sale (including in respect of an Asset Securitizationexcluding any Loan Sale) which occurs after the Closing Date are applied as provided in Section SECTION 2.5(b) hereof; provided that, notwithstanding anything herein to the contrary, (i) Company will not dispose of any assets at any time in an amount that would could impair or jeopardize the status of Company as a Real Estate Investment Trust and (ii) the market value of any assets sold in an Asset Securitization or a Loan Sale shall be excluded from the calculation of assets disposed of in Asset Sales for purposes of the 25% limitation set forth in this Section SECTION 6.6. On the day of any Asset Sale (excluding any Loan Sale) by Company or its Subsidiaries in which the Asset Sale Sales Proceeds thereof exceed $3,000,000, Company shall deliver to Administrative Agent a certificate of an Authorized Officer certifying as to the amount of gross proceeds thereof and costs and expenses payable thereof which were deducted in determining the Asset Sale Proceeds." (f) Section 6.10 of the Credit Agreement is hereby amended to read as follows:

Dispositions of Assets. Company shall not, and shall not permit any of its Subsidiaries to, sell, lease, assign, or otherwise dispose of any assets of Company or any of its Subsidiaries in an Asset Sale, or otherwise consummate any Asset Sale, except so long as there exists no Default or Event of Default, and no Default or Event of Default would be caused thereby, Company and its Subsidiaries may consummate Asset Sales for fair market value in an aggregate amount not to exceed during any period of four consecutive fiscal quarters 25% of Total Assets (calculated as an amount equal to the result of (a) the sum of Total Assets as of the first day of each fiscal quarter during such four quarter period (b) divided by four), provided that prior to the Conversion Date, the Asset Sale Proceeds in excess of $3,000,000 of each Asset Sale (including in respect of an Asset Securitization) which occurs after the Closing Date are applied as provided in Section 2.5(b) hereof; provided that, notwithstanding anything herein to the contrary, (i) Company will not dispose of any assets at any time in an amount that would could impair or jeopardize the status of Company as a Real Estate Investment Trust and (ii) the market value of any assets sold in an Asset Securitization shall be excluded from the calculation of assets disposed of in Asset Sales for purposes of the 25% limitation set forth in this Section 6.6Trust. On the day of any Asset Sale by Company or its Subsidiaries in which the Asset Sale Sales Proceeds thereof exceed $3,000,000, Company shall deliver to Administrative Agent Lender a certificate of an Authorized Officer certifying as to the amount of gross proceeds thereof and costs and expenses payable thereof which were deducted in determining the Asset Sale Proceeds." (f) Section 6.10 of the Credit Agreement is hereby amended to read as follows: