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. The Company shall will not, and shall will not permit any of its Subsidiaries the other Group Members to, selldirectly or indirectly, convey, sell (pursuant to a sale/leaseback or otherwise), lease, assignsublease, transfer or otherwise dispose of, or grant any Person an option to acquire, in one transaction or a series of transactions, any of its property, business or assets, including the Capital Stock of any Subsidiary that is a Group Member, whether now owned or hereafter acquired, except for (each, a “Permitted Disposition”): (a) bona fide sales of inventory to customers for fair value in the ordinary course of business; (b) the sale, lease, transfer or other disposition of obsolete machinery, parts, equipment and other assets no longer used or useful in the conduct of the business of the Company or any other Group Member, as appropriate, to customers for fair value in the ordinary course of its Subsidiaries in an Asset Sale, or otherwise consummate any Asset Sale, except business so long as there exists no Default the Net Proceeds therefrom are used to repair or Event of Default, and no Default replace obsolete property or Event of Default would be caused thereby, Company and its Subsidiaries may consummate to purchase or otherwise acquire new assets or property; (c) 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 Dispositions if all 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 following conditions are applied as provided in Section 2.5(b) hereof; provided that, notwithstanding anything herein to the contrary, met: (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 or otherwise disposed of (by the Company and the other Group Members taken as a whole) in Asset Sales for purposes any Fiscal Year do not exceed $300,000; (ii) the Net Proceeds received are at least equal to the fair market value of such assets; (iii) at least 75% of the 25% limitation consideration received is cash; (iv) after giving effect to the sale or other disposition of the assets included within the Asset Disposition and the repayment of Indebtedness with the proceeds thereof, the Company would be in compliance on a pro forma basis with the covenants set forth in Section 9.08 hereof and is in compliance with all other terms and conditions of this Section 6.6. On Agreement; (v) the day Net Proceeds received are applied to repay Senior Indebtedness or prepay the Note; (vi) no Event of any Default then exists or shall result from such sale or other disposition; and (vii) such Asset Sale Disposition does not involve the sale of some but not all of the Capital Stock of a Subsidiary Guarantor. (d) issuances of Capital Stock (other than by Company WC Holdings and its Subsidiaries) upon exercise of options; (e) the disposition of Pumpkin Masters Holdings, Inc., 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 ProceedsP.D. Holdings or their Subsidiaries."; and. (f) Section 6.10 issuances by Primrose (but not any other Group Member) of options to acquire its common stock, provided that Primrose may make no such issuance if, as a result, the total amount of options, warrants and other rights to acquire common stock of Primrose outstanding at such time would exceed 10% of the Credit Agreement is hereby amended to read as follows:aggregate number of shares of Primrose common stock then outstanding or issuable under any such options, warrants or other rights (assuming all such rights are exercisable at such time).

Dispositions of Assets. The Company shall will not, and shall not nor will it permit ---------------------- any of its Subsidiaries Subsidiaries, directly or indirectly, to: convey, sellsell (pursuant to a sale/leaseback or otherwise), lease, assignsublease, transfer or otherwise dispose of, or grant any Person an option to acquire, in one transaction or a series of any assets of Company or transactions, any of its Subsidiaries in an Asset Saleproperty, business or assets, or otherwise consummate the capital stock of or other equity interests in any Asset Saleof its Subsidiaries, whether now owned or hereafter acquired, 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 for: (a) Bona fide sales of inventory, including real estate acquired in the sum ordinary course of Total Assets as business, to customers for fair value in the ordinary course of business and dispositions of obsolete equipment not used or useful in the first day of each fiscal quarter during such four quarter period business; (b) divided by four), provided that Asset Dispositions if all of 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 following conditions are applied as provided in Section 2.5(b) hereof; provided that, notwithstanding anything herein to the contrary, met: (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 or otherwise disposed of (by the Company and its Subsidiaries taken as a whole) in Asset Sales for purposes any fiscal year do not exceed $500,000; (ii) the Net Proceeds received is at least equal to the fair market value of such assets; (iii) at least 75% of the 25% limitation consideration received is Cash; (iv) after giving effect to the sale or other disposition of the assets included within the Asset Disposition and the repayment of Indebtedness with the proceeds thereof, the Company would be in compliance on a pro forma basis with the covenants set forth in Section 9.8 hereof recomputed for the most recently ended month for which information is available and is in compliance with all other terms and conditions of this Section 6.6. On Agreement; (v) no Event of Default then exists or shall result from such sale or other disposition; or (c) Sale and leaseback transactions relating to real estate or capital equipment; provided however, that 50% of the day Net Proceeds of any Asset Sale such ---------------- transaction shall be utilized by the Company to prepay the outstanding principal and any outstanding interest or its Subsidiaries in which penalties on the Asset Sale Proceeds thereof exceed $3,000,000, Company shall deliver Note pursuant 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 4 of the Credit Agreement is hereby amended to read as follows:Note.

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 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 -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 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 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 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 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 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: