Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except: (a) Dispositions of obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiaries, whether now owned or hereafter acquired, in the ordinary course of business; (b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program; (c) Dispositions of inventory in the ordinary course of business; (d) Dispositions of equipment or non-core assets in the ordinary course of business to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property; (e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b) (i) with respect to the Net Cash Proceeds of such Disposition; (f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01; (i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and (h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable: (i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets, (ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties), (iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000, (iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business, (v) Dispositions of cash and/or Cash Equivalents, (vi) (i) any termination of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business, (vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding), (viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Law.
Appears in 3 contracts
Samples: Credit Agreement (Ashford Hospitality Trust Inc), Credit Agreement (Ashford Hospitality Trust Inc), Credit Agreement (Ashford Hospitality Trust Inc)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete obsolete, surplus or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of tangible property no longer used or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries;
(b) Dispositions of furniture, fixtures and equipment the abandonment or other personal property Disposition of IP Rights (including allowing any registrations or any applications for registration of any IP Rights to AINC lapse or an Affiliate thereof go abandoned) to the extent Borrower determines in its reasonable business judgment that is leased back (i) such IP Rights are not commercially reasonable to maintain under the ERF Programcircumstances and (ii) such Disposition could not reasonably be expected to materially and adversely affect the business of the Borrower or any of its Restricted Subsidiaries;
(c) Dispositions of inventory and goods held for sale in the ordinary course of business;
(d) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(e) Dispositions any surrender or waiver of Equity Interests contract rights or settlement, release, recovery on or surrender of any Property Level Subsidiariescontract, any Hotel Properties and tort or other Dispositions, claims in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance ordinary course of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Dispositionbusiness;
(f) To the extent constituting Dispositions(A) Dispositions permitted by Section 7.04, (iB) Liens permitted by Section 7.01 (other than Section 7.01(o)(ii)), (C) Investments permitted by Section 7.03, 7.02 (iiother than Section 7.02(e) with respect to Dispositions under this Section 7.05 and Section 7.02(h)) and (D) Restricted Payments permitted by Section 7.06, ;
(g) Dispositions by the Borrower and its Restricted Subsidiaries of property pursuant to sale-leaseback transactions (other than any Windsor Property); provided that (i) the fair market value of all property so Disposed of shall not exceed $20,000,000 from and after the Closing Date and (iiiii) Liens permitted by Section 7.01the purchase price for such property shall be paid to the Borrower or such Restricted Subsidiary for not less than 75% cash consideration;
(h) Dispositions of Cash Equivalents;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary Dispositions of accounts receivable in connection with the collection or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andcompromise thereof;
(hj) Parent licensing or any Subsidiary or Controlled JV Subsidiary sublicensing of Parent may make or effect, as applicable:
(i) Dispositions IP Rights in the ordinary course of business on customary terms and which does not materially interfere with the business of the Borrower and its Restricted Subsidiaries;
(k) sales of property and issuances and sales of Equity Interests (A) receivables in connection with among or between Loan Parties (other than Holdings); provided that the collection, settlement sale or compromise thereof (including any discount and/or forgiveness thereof)issuance by the Borrower of its Equity Interests to Holdings shall be permitted, (B) equipmentamong or between Restricted Subsidiaries that are not Loan Parties, (C) by Restricted Subsidiaries that are not Loan Parties to the Loan Parties (other current assets than Holdings) or (D) immaterial assets,by Loan Parties to Restricted Subsidiaries that are not Loan Parties; provided that the fair market value of all property so Disposed of pursuant to this sub-clause ((D)) shall not exceed $25,000,000 in the aggregate;
(iil) Dispositionsleases, to the extent required pursuant to the terms subleases, licenses or sublicenses of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Restricted Subsidiaries;
(m) transfers of property subject to Casualty Events upon receipt of the Net Cash Proceeds of such Casualty Event;
(n) Dispositions of (i) the Memcor Business and (ii) any surrender or waiver of contractual rights or the settlementWindsor Property, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,pursuant to a sale-leaseback transaction; and
(viio) Dispositions by the Borrower and its Restricted Subsidiaries not otherwise permitted under this Section 7.05; provided, that (i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default exists), no Event of Default shall exist or would result from such Disposition, (ii) the aggregate book value of all property subject Disposed of in reliance on this clause (o) shall not exceed $25,000,000 and (iii) the purchase price for such property shall be paid to foreclosurethe Borrower or such Restricted Subsidiary for not less than 75% cash consideration; provided, casualtyhowever, eminent domain or condemnation proceedings (including in lieu thereof or that any similar proceeding),
(viii) Dispositions made to comply with any order Disposition of any Governmental Authority or property pursuant to this Section 7.05 (except pursuant to Sections 7.05(e), (h) and (j)), shall be for no less than the fair market value of such property at the time of such Disposition. To the extent any applicable requirement Collateral is Disposed of Lawas expressly permitted by this Section 7.05, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent and the Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 3 contracts
Samples: First Lien Credit Agreement (Evoqua Water Technologies Corp.), First Lien Credit Agreement (EWT Holdings I Corp.), First Lien Credit Agreement (EWT Holdings I Corp.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) (w) Dispositions of obsolete obsolete, worn out, used or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariessurplus property, whether now owned or hereafter acquired, in the ordinary course of business;
, (bx) Dispositions of furniture, fixtures property no longer used or useful in the conduct of the business of the Borrower or any of its Subsidiaries and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(cy) Dispositions to landlords of inventory improvements made to leased real property pursuant to customary terms of leases entered into in the ordinary course of business;
(db) Dispositions of equipment or non-core inventory, goods held for sale in the ordinary course of business and immaterial assets in the ordinary course of business business;
(c) Dispositions of property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or any Subsidiary of the Borrower; provided that if the transferor of such property is the Borrower or a Subsidiary Guarantor (i) the transferee thereof must be the Borrower or a Subsidiary Guarantor or (ii) if such transaction constitutes an Investment, such Investment must be a Restricted Investment permitted by Section 7.06 or a Permitted Investment; (e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments are permitted by Section 7.03, 7.04 (iiother than Section 7.04(g)) or otherwise constitute a Restricted Payments Payment (including a Restricted Investment) permitted by Section 7.06, 7.06 and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary 7.01 (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereofSection 7.01(l)(ii), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Law.;
Appears in 3 contracts
Samples: First Amendment to Credit Agreement (Portillo's Inc.), First Amendment to Credit Agreement (Portillo's Inc.), Credit Agreement (Portillo's Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete obsolete, abandoned, or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesuseful property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furnitureinventory in the ordinary course of business (such inventory to include, fixtures without limitation, landfill gas, carbon offset credits, electricity, solid waste, recyclables and equipment other by-products of the wastestream collected by the Borrower or other personal property to AINC any of its Restricted Subsidiaries and sold to, or an Affiliate thereof that is leased back under disposed of with, third parties in the ERF Programordinary course of business);
(c) Dispositions of inventory in the ordinary course of business;
(d) Dispositions of equipment or non-core assets in the ordinary course of business Real Estate to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by any Loan Party to another Loan Party (other than Intermediate Holdings);
(e) Dispositions consisting of Equity Interests sale or conversion of any Property Level Subsidiaries, any Hotel Properties and Cash Equivalents into cash or other Dispositions, in each case, Cash Equivalents to the extent not otherwise permitted prohibited by the terms of this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such DispositionAgreement;
(f) To Dispositions of motor vehicles, containers and related equipment in the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01ordinary course of business;
(ig) Any Loan Party may make a Disposition casualty events or condemnations to any other Loan Party the extent such events are deemed to constitute Dispositions and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) subject to the provisions of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andSection 2.13(b);
(h) Parent or any Subsidiary or Controlled JV Subsidiary compromise and settlement of Parent may make or effect, as applicable:
(i) Dispositions accounts receivable of disputed accounts and accounts of insolvent customers to the extent such compromise and settlement is made in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,amounts;
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iiii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment constituting Restricted Payments otherwise permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,6.06 and pursuant to the other provisions of this Agreement but solely to the extent any such permitted Restricted Payment is deemed to constitute a Disposition;
(ivj) leases and/or licenses Dispositions in the nature of Hotel Properties asset swaps conducted on an arms-length basis and for fair market value with bona fide third parties unaffiliated with Intermediate Holdings or any Affiliate of Intermediate Holdings; provided, that no such asset swap may be made at any time that a Default or Event of Default has occurred and is continuing;
(k) Dispositions by the Borrower and the Restricted Subsidiaries of property acquired after the Closing Date in Permitted Acquisitions; provided that (i) the Borrower identifies any such assets related thereto to be divested in reasonable detail in writing to the Administrative Agent on or before the closing date of such Permitted Acquisition, and (including, without limitation, intellectual ii) the fair market value of the assets to be divested in connection with any Permitted Acquisition (as determined by the board of directors of the Borrower) does not exceed an amount equal to 25% of the total cash and non-cash consideration for such Permitted Acquisition;
(l) Dispositions by the Borrower and the Restricted Subsidiaries of property; provided that all such Dispositions shall be made for at least seventy five percent (75%) of cash consideration (or such other percentage as approved by the Administrative Agent in its reasonable discretion);
(m) Dispositions of accounts receivable for purposes of collection in the ordinary course of business,;
(vn) Dispositions of cash and/or Cash Equivalents,permitted by Section 6.04;
(vio) licenses (ion a non-exclusive basis with respect to intellectual property), or sublicenses (on a non-exclusive basis with respect to intellectual property) any termination of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) personal property in the ordinary course of business,;
(viip) Dispositions of property subject Real Estate pursuant to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof which the Borrower or any similar proceeding),Subsidiary, in the ordinary course of its business, grants any third party a right to use, lease or sublease such Real Estate;
(viiiq) the termination of any lease, sublease, license or sublicense of Real Estate to which the Borrower or Subsidiary is party to the extent such Real Estate is no longer required by such Person in the ordinary course of its business, or the termination of any such lease, sublease, license or sublicense at the end of its applicable term;
(r) the abandonment or other disposition of patents, trademarks or other intellectual property that are, in the reasonable judgment of the Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Borrower and its Subsidiaries taken as a whole;
(s) Dispositions set forth on Schedule 6.05; provided that the Borrower shall supplement such Schedule as of the Acquisition Date to add any Dispositions of property of the Target and its subsidiaries;
(t) Financing Dispositions; or
(u) other Dispositions (not specified in this Section 6.05) made after the Closing Date (or, in the case of the Target and its subsidiaries, after the Acquisition Date) not to comply with exceed $125,000,000 in the aggregate in any order fiscal year; provided that any Disposition pursuant to clauses (a) through (c), (e) through (o) and (s) through (u) shall be for an amount not less than fair market value as determined in good faith by the applicable board of any Governmental Authority directors or any applicable requirement of Lawother governing body, whose determination will be conclusive.
Appears in 3 contracts
Samples: Credit Agreement (ADS Waste Holdings, Inc.), Senior Secured Credit Agreement (Advanced Disposal Services Glacier Ridge Landfill, LLC), Senior Secured Credit Agreement (Trestle Transport, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete obsolete, worn out, used or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariessurplus property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries;
(b) Dispositions of furniture, fixtures inventory and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory goods held for sale in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property; provided that to the extent the property being transferred constitutes Current Asset Collateral, such replacement property shall constitute Current Asset Collateral;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor of such property is a Loan Party (i) the transferee thereof must be a Loan Party, (ii) such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 9.2 (other than Section 9.2(e)) or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair value and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 9.2 (other than Section 9.2(e)); provided that no Disposition of Current Asset Collateral (other than Cash and Cash Equivalents) shall be permitted pursuant to this clause (d) unless (A) upon the occurrence and continuation of an Event of Default, such Disposition is made for cash and (B) the Borrower shall have (1) in respect of any Disposition pursuant to this clause (d) of property with an aggregate fair market value in excess of $2,000,000, delivered to the Administrative Agent written notice of such disposition in reasonable detail and (2) if requested by the Administrative Agent, delivered to the Administrative Agent an updated Borrowing Base Certificate; provided further that Dispositions of Intellectual Property pursuant to this Section 9.5(d) shall comply with the terms of Section 9.5(j)(iv);
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Sections 9.2 (other than Section 7.05 9.2(e)), 9.4 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this other than Section 7.059.4(h); provided that the Borrower complies with the applicable requirements of ) and 9.6 (other than Section 2.04(b9.6(d)
) and Liens permitted by Section 9.1 (i) with respect to the Net Cash Proceeds of such Dispositionother than Section 9.1(m)(ii));
(f) To the extent constituting Dispositionsso long as no Event of Default exists or would result therefrom, (iother than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default exists), Dispositions of other real property pursuant to sale-leaseback transactions, provided that the applicable net proceeds thereof are applied in accordance with the terms of the First Lien Term Facility Credit Agreement, the Second Lien Term Facility Credit Agreement or the documentation relating to any Permitted Refinancing of the First Lien Term Facility Credit Agreement or the Second Lien Term Facility Credit Agreement (as applicable);
(g) Investments permitted by Section 7.03any issuance or sale of Equity Interests in, or sale of Indebtedness or other securities of, an Unrestricted Subsidiary;
(iih) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and the Restricted Payments permitted by Section 7.06Subsidiaries, and (iii) Liens permitted by Section 7.01taken as a whole;
(i) Any [Reserved];
(j) Dispositions of property (other than Current Asset Collateral) not otherwise permitted under this Section 9.5; provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Default exists), no Default shall exist or would result from such Disposition; (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $15,000,000, the Borrower or any of the Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents (in each case, free and clear of all Liens at the time received, other than nonconsensual Liens permitted by Section 9.1 and Liens permitted by Sections 9.1(a), (m), (s), (t), (w), (x), (y) and (ee)); provided, however, that for the purposes of this clause (ii), (A) any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by such Restricted Subsidiary from such transferee that are converted by such Restricted Subsidiary into cash (to the extent of the cash received) within one hundred and eighty (180) days following the closing of the applicable Disposition and (C) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value as determined by the Borrower in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is at that time outstanding, not in excess of the greater of $25,000,000 and 1.00% of Total Assets at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash; (iii) proceeds of such Dispositions are applied in accordance with the First Lien Term Facility Credit Agreement and the Second Lien Term Facility Credit Agreement; and (iv) in the event of a Disposition of Intellectual Property used or useful in connection with the Current Asset Collateral, the purchaser, assignee or other transferee thereof agrees in writing to be bound by a non-exclusive royalty-free worldwide license of such Intellectual Property in favor of the Administrative Agent for use in connection with the exercise of the rights and remedies of the Secured Parties, which license shall be in form and substance reasonably satisfactory to the Administrative Agent, and provided further that in the case of a Disposition of Intellectual Property licensed by the Borrower or one of its Restricted Subsidiaries from a third party, the transferee thereof shall be required to provide such a license only to the extent to which the applicable license gives it a right to do so;
(k) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(l) bulk sales or other Dispositions of the Inventory of a Loan Party may make a Disposition in connection with Store closings, at arm’s length, provided that (i) all Net Cash Proceeds received in connection therewith are applied to any other Loan Party the Obligations if then required in accordance with Section 2.9 hereof and (ii) such store closures and related Inventory dispositions shall not exceed in any Subsidiary transaction or Controlled JV Subsidiary series of related transactions, ten percent (other than a Loan Party10%) of the number of the Loan Parties’ stores as of the date of such bulk sale or other Disposition, unless the Borrower shall have delivered to the Administrative Agent an updated Borrowing Base Certificate; provided further that in connection with any store closures which exceed fifteen percent (15%) in the aggregate during any twelve-month period of the number of the Loan Parties’ stores in existence at the beginning of such period (net of new store openings), (x) the Borrower shall have delivered immediately prior to such event written notice of such Disposition in reasonable detail, (y) if requested by the Administrative Agent, the Borrower shall permit an updated Inventory appraisal in form and detail and from an appraiser reasonably satisfactory to the Administrative Agent and (z) such store closures shall be made by a Loan Party may make liquidator or under the supervision of a Disposition consultant (such liquidator or consultant shall be reasonably acceptable to any Loan Party the Administrative Agent) and pursuant to liquidation or any other Subsidiary or Controlled JV Subsidiary consulting arrangements reasonably acceptable to the Administrative Agent;
(m) [reserved];
(n) the unwinding of any Loan Party; andSwap Contract;
(ho) Parent the lapse or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions abandonment in the ordinary course of business of any registrations or applications for registration of any immaterial IP Rights;
(Ap) receivables to the extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property not constituting Current Asset Collateral (excluding any boot thereon permitted by such provision) for use in any business conducted by the Borrower or any of its Restricted Subsidiaries that is not in contravention of Section 9.7;
(q) Dispositions of accounts receivable in connection with the collection, settlement collection or compromise thereof thereof, provided that no disposition of Eligible Accounts shall be permitted pursuant to this clause (including q) unless the Borrower shall have (i) delivered to the Administrative Agent written notice of such disposition in reasonable detail and (ii) if requested by the Administrative Agent, delivered to the Administrative Agent an updated Borrowing Base Certificate;
(r) sales or other dispositions by the Borrower or any discount and/or forgiveness thereof)Restricted Subsidiary of assets in connection with the closing or sale of a Store permitted under clause (l) of this Section 9.5 which consist of leasehold interests in the premises of such Store, the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such Store; provided that as to each and all such sales and closings, (A) no Event of Default shall result therefrom and (B) equipmentsuch sale shall be on commercially reasonable prices and terms in a bona fide arm’s length transaction;
(s) so long as no Event of Default exists or would arise as a result of the transaction, sales of a Subsidiary or any business segment which is a Non-Core Business Segment, or any portion thereof, (Ci) to any Person other current assets than a Loan Party or (D) immaterial assets,
a Subsidiary or a Sponsor, for fair market value and so long as the consideration received for such sale or transfer is at least 85% cash or Cash Equivalents, or (ii) Dispositionsto a Subsidiary or Sponsor, if the Payment Conditions are satisfied, such sale or transfer is for fair market value and the entire consideration received for such sale or transfer is paid in cash or Cash Equivalents, provided that, in each case, such sale shall be in an amount at least equal to the greater of the amounts advanced or available to be advanced against the assets included in the sale under the Borrowing Base, and further provided that all Net Cash Proceeds, if any, received in connection with any such sales are applied to prepay the Loans pursuant to, and to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (includingby, but not limited to, buy/sell arrangements between joint venture or similar partiesSection 2.9(b),; and
(iiit) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted Cash Equivalents; provided that any Disposition of any property pursuant to this Section 7.03 in an aggregate amount not greater than $10,000,000,
9.5 (iv) leases and/or licenses of Hotel Properties and assets related thereto (includingexcept pursuant to Sections 9.5(e), without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business ), (k), (n), and (iio) and except for Dispositions from the Borrower or a Restricted Subsidiary that is a Loan Party to the Borrower or a Restricted Subsidiary that is a Loan Party), shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith. To the extent any surrender or waiver Collateral is Disposed of contractual rights or as expressly permitted by this Section 9.5 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the settlementLiens created by the Loan Documents, release or surrender of contractual rights or litigation claims (including and, if requested by the Administrative Agent, upon the certification by the Borrower that such Disposition is permitted by this Agreement, the Administrative Agent shall be authorized to take any actions deemed appropriate in tort) in order to effect the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Lawforegoing.
Appears in 3 contracts
Samples: Credit Agreement (BJ's Wholesale Club Holdings, Inc.), Credit Agreement (BJ's Wholesale Club Holdings, Inc.), Credit Agreement (BJ's Wholesale Club Holdings, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business real property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by any Subsidiary to the Company or to a wholly-owned Subsidiary; provided that if the transferor of such property is a Subsidiary Guarantor, the transferee thereof must either be the Company or a Subsidiary Guarantor that is the direct or indirect parent of the transferor;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 7.04;
(includingf) any sale or assignment of accounts receivable arising in the ordinary course of business (and any general intangibles, documents, instruments or records related thereto) made in connection with a supply chain finance arrangement involving the Company and/or any of its Subsidiaries and a buyer of the products and/or services of the Company or its Subsidiaries (but not, for the avoidance of doubt, Dispositions in excess as part of any monetary limitations as set forth in this Section 7.05securitization or similarly structured transaction); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect any such sale or assignment must be made without recourse for credit risk to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, Company and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party its Subsidiaries and otherwise on terms customary for supply chain finance arrangements and (ii) the aggregate amount of accounts receivable sold, assigned, conveyed or otherwise transferred pursuant to this clause (f) in any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andfiscal quarter shall not exceed $75,000,000;
(hg) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
Dispositions by the Company and its Subsidiaries not otherwise permitted under this Section 7.05; provided that (i) Dispositions in at the ordinary course time of business of (A) receivables in connection with the collectionsuch Disposition, settlement no Default shall exist or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business would result from such Disposition and (ii) any surrender or waiver the aggregate fair market value of contractual rights or the settlementproperty being Disposed of, release or surrender when taken together with the aggregate fair market value of contractual rights or litigation claims all other property Disposed of in reliance on this clause (including g) while this Agreement is in tort) in effect, shall not exceed 15.0% of Consolidated Total Assets (determined at the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order time of any Governmental Authority given Disposition as of the end of the most recently ended fiscal year); provided, however, that any Disposition pursuant to clauses (a) through (c), (f) or any applicable requirement of Law(g) shall be for fair market value.
Appears in 3 contracts
Samples: Credit Agreement (Tetra Tech Inc), Credit Agreement (Tetra Tech Inc), Credit Agreement (Tetra Tech Inc)
Dispositions. Make Intermediate Holdings and the Borrower will not, and will not permit any Disposition or enter into any agreement to Restricted Subsidiary to, make any Disposition, except:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiaries, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furniture, fixtures inventory and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory Permitted Investments in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business real property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property (i) by any Loan Party to another Loan Party, (ii) any Restricted Party to any Loan Party and (iii) by any Restricted Foreign Subsidiary to any other Restricted Foreign Subsidiary;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition6.03;
(f) To leases, licenses, subleases or sublicenses (including the extent constituting Dispositionsprovision of open source software under an open source license) granted in the ordinary course of business and on ordinary commercial terms that do not interfere in any material respect with the business of Intermediate Holdings and its Restricted Subsidiaries;
(g) Dispositions of intellectual property rights that are no longer used or useful in the business of Intermediate Holdings and its Restricted Subsidiaries;
(h) the discount, write-off or Disposition of overdue accounts receivable in the ordinary course of business;
(i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, 6.07 and (iii) Liens Investments permitted by Section 7.016.05;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(ij) Dispositions by the Borrower and its Subsidiaries not otherwise permitted under this Section; provided that the aggregate book value of all Dispositions pursuant to this clause (j) in any trailing twelve month period shall not exceed $10,000,000; provided further that the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise cash proceeds thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositionsshall be applied, to the extent required pursuant by Section 2.08(d), in accordance therewith;
(k) Dispositions of Investments in Permitted Joint Ventures to the terms of any agreement with respect to a JV Subsidiary (includingextent required by, but not limited or made pursuant to, buy/sell arrangements between joint venture with Joint Venture Partners set forth in the relevant Joint Venture arrangement, stockholders agreement or similar partiesagreement; provided that the cash proceeds thereof shall be applied, to the extent required by Section 2.08(d),, in accordance therewith;
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination expiration of any lease option agreement in the ordinary course respect of business real or personal property and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,, in each case, which do not materially interfere with the business of any Loan Party; and
(viim) Dispositions by any Restricted Party of property subject Equity Interests of, or sales of Indebtedness or other securities of, Unrestricted Subsidiaries; provided that the cash proceeds thereof shall be applied, to foreclosurethe extent required by Section 2.08(d), casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Lawaccordance therewith.
Appears in 3 contracts
Samples: Credit Agreement (MSG Entertainment Spinco, Inc.), Credit Agreement (MSG Entertainment Spinco, Inc.), Credit Agreement (Madison Square Garden Co)
Dispositions. Make any Disposition (other than as part of or enter into any agreement to make any Dispositionin connection with the Transactions), except:
(a) Dispositions of obsolete obsolete, damaged, worn out, used or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariessurplus property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Parent Borrower or any of its Restricted Subsidiaries;
(b) Dispositions of furniture, fixtures inventory and equipment or other personal property to AINC or an Affiliate thereof that is leased back under goods held for sale in the ERF Program;
ordinary course of business and immaterial assets (cconsidered in the aggregate) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Parent Borrower or any Restricted Subsidiary; provided that if the transferor of such property is a Loan Party (i) the transferee thereof must be a Loan Party or (ii) if such transaction constitutes an Investment, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(e) Dispositions that otherwise constitute a Permitted Investment, are permitted by Section 7.04 (other than Section 7.04(f)) or otherwise constitute a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) and Liens permitted by Section 7.01 (other than Section 7.01(m)(ii));
(f) Dispositions of Equity Interests property pursuant to sale-leaseback transactions;
(g) Dispositions of Cash Equivalents;
(i) leases, subleases, licenses or sublicenses, in each case in the ordinary course of business and which do not materially interfere with the business of the Parent Borrower and the Restricted Subsidiaries, taken as a whole; and (ii) Dispositions of intellectual property that do not materially interfere with the business of the Parent Borrower or any of its Restricted Subsidiaries;
(i) transfers of property subject to Casualty Events;
(j) Dispositions of property; provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Default has occurred and is continuing), no Default shall have occurred and is continuing or would result from such Disposition; and (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $75,000,000, the Parent Borrower or any of its Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents (in each case, free and clear of all Liens at the time received, other than nonconsensual Liens permitted by Section 7.01 and Liens permitted by Xxxxxxxx 0.00(x), (x), (x), (x), (x), (x), (x), (xx) (only to the extent such Liens are replacing Liens originally incurred under Section 7.01(gg) and the Obligations are secured by such cash and Cash Equivalents to the same extent), (bb) (only to the extent the Obligations are secured by such cash and Cash Equivalents to the same extent), (cc) (only to the extent the Obligations are secured by such cash and Cash Equivalents to the same extent) and (gg) (only to the extent the Obligations are secured by such cash and Cash Equivalents to the same extent)); provided, however, that for the purposes of this clause (ii), the following shall be deemed to be cash: (A) any liabilities (as shown on the Parent Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Parent Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that (i) are assumed by the transferee of any Property Level such assets or (ii) that are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Parent Borrower or its Restricted Subsidiaries, any Hotel Properties and other Dispositions) and, in each case, for which the Parent Borrower and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities, notes or other obligations or assets received by the Parent Borrower or the applicable Restricted Subsidiary from such transferee that are converted by the Parent Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within one hundred and eighty (180) days following the closing of the applicable Disposition, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to the Parent Borrower or its Restricted Subsidiaries), to the extent that the Parent Borrower and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition and (D) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (D) that is at that time outstanding, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as the greater of $175,000,000 and 2.25% of Total Assets at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value;
(k) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Dispositionjoint venture arrangements and similar binding arrangements;
(fl) To Dispositions or discounts of accounts receivable in connection with the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01collection or compromise thereof;
(i) Any Loan Party may make a Disposition to any other Loan Party and (iim) any Subsidiary issuance or Controlled JV Subsidiary sale of Equity Interests in, or sale of Indebtedness or other securities of, an Unrestricted Subsidiary;
(other than a Loan Partyn) to the extent allowable under Section 1031 of a Loan Party may make a Disposition to the Code (or comparable or successor provision), any Loan Party exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by the Parent Borrower or any other Subsidiary or Controlled JV Subsidiary of its Restricted Subsidiaries that is not in contravention of Section 7.07;
(o) the unwinding of any Loan Party; andSwap Contract;
(hp) Parent or any Subsidiary or Controlled JV Subsidiary Disposition of Parent may make or effect, as applicable:Securitization Assets to a Securitization Subsidiary;
(iq) Dispositions the lapse or abandonment in the ordinary course of business of (A) receivables in connection with the collection, settlement any registrations or compromise thereof (including applications for registration of any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,IP Rights;
(iir) Dispositions, any swap of assets (other than Cash Equivalents) in exchange for assets of the same type in the ordinary course of business of comparable or greater value or usefulness to the extent required pursuant to business of the terms Parent Borrower and its Subsidiaries as a whole, as determined in good faith by the management of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),the Parent Borrower;
(iiis) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an connection with Permitted Acquisitions or any other acquisition or Investment permitted pursuant under this Agreement within twelve months thereof or, if the Parent Borrower (or any of its Restricted Subsidiaries) enters into a legally binding commitment to Section 7.03 in an make such Disposition within twelve months thereof, within eighteen months of such acquisition or Investment; provided that the aggregate amount of such Dispositions shall not greater than $10,000,000,exceed 25% of the fair market value of the acquired entity or business; and
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (iit) any surrender or waiver of contractual contract rights or the settlement, release or surrender of contractual contract rights or other litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or ; provided that any similar proceeding),
(viii) Dispositions made to comply with any order Disposition of any Governmental Authority property pursuant to this Section 7.05 (except pursuant to Sections 7.05(e), (i), (k), (m), (o), (p), (q) and (t) and except for Dispositions from the Parent Borrower or a Restricted Subsidiary to the Parent Borrower or a Restricted Subsidiary), shall be for no less than the fair market value of such property at the time of such Disposition. To the extent any applicable requirement Collateral is Disposed of Lawas expressly permitted by this Section 7.05 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Credit Documents, and, if requested by the Administrative Agent, upon the certification by the Parent Borrower that such Disposition is permitted by this Agreement, the Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 3 contracts
Samples: Credit Agreement (Quintiles IMS Holdings, Inc.), Credit Agreement (Quintiles IMS Holdings, Inc.), Credit Agreement (Quintiles IMS Holdings, Inc.)
Dispositions. Make Neither the Borrower nor any of the Restricted Subsidiaries shall, directly or indirectly, make any Disposition or enter into any agreement to make any DispositionDisposition (other than as part of or in connection with the Transaction), except:
(a) (i) Dispositions of obsolete obsolete, surplus or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions in the ordinary course of business of property no longer used or useful in the conduct of the business of the Borrower or any of its Restricted Subsidiaries and (ii) Dispositions of property no longer used or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries outside the ordinary course of business (and for consideration complying with the requirements applicable to Dispositions pursuant to clause (j) below) in an aggregate amount not to exceed $25,000,000;
(b) Dispositions of furnitureinventory, fixtures goods held for sale in the ordinary course of business and equipment immaterial assets (including allowing any registrations or other personal any applications for registration of any intellectual property to AINC lapse or an Affiliate thereof that is leased back under the ERF Program;
(cgo abandoned) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(ed) Dispositions of Equity Interests of property to the Borrower or any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05)Restricted Subsidiary; provided that if the Borrower complies with the applicable requirements transferor of Section 2.04(b)
such property is a Loan Party, (i) with respect to the Net Cash Proceeds of transferee thereof must be a Loan Party or (ii) if such Dispositiontransaction constitutes an Investment, such transaction is permitted under Section 7.02;
(fe) To to the extent constituting Dispositions, (i) the granting of Liens permitted by Section 7.01, the making of Investments permitted by Section 7.037.02, mergers, consolidations and liquidations permitted by Section 7.04 (iiother than Section 7.04(g)) and Restricted Payments permitted by Section 7.06;
(f) Dispositions made on the Closing Date to consummate the Transaction;
(g) Dispositions of Cash Equivalents;
(h) leases, subleases, licenses or sublicenses (including the provision of software or the licensing of other intellectual property rights), in each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(i) transfers of property subject to Casualty Events;
(j) Dispositions of property not otherwise permitted under this Section 7.05 in an aggregate amount during the term of this Agreement not to exceed $500,000,000; provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Default exists), no Default shall exist or would result from such Disposition, (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $5,000,000, the Borrower or any of its Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents (in each case, free and clear of all Liens at the time received, other than nonconsensual Liens permitted by Section 7.01 and Liens permitted by Sections 7.01(a), (f), (k), (p), (q), (bb) and (cc) and clauses (i) and (ii) of Section 7.01(r)); provided, however, that for the purposes of this clause (j)(ii), the following shall be deemed to be cash: (A) any liabilities (as shown on the Borrower’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary associated with the assets or Restricted Subsidiary sold in such Disposition that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by such the Borrower or the applicable Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition, and (C) aggregate non-cash consideration received by the Borrower or the applicable Restricted Subsidiary having an aggregate fair market value (determined as of the closing of the applicable Disposition for which such non-cash consideration is received) not to exceed $10,000,0000 at any time (net of any non-cash consideration converted into cash and Cash Equivalents), and (iii) Liens permitted to the extent that the aggregate amount of Net Proceeds received by the Borrower or a Restricted Subsidiary from all Dispositions made pursuant to this Section 7.017.05(j) exceeds $250,000,000, all Net Proceeds in excess of such amount shall be applied to prepay Term Loans in accordance with Section 2.05(b)(ii) and may not be reinvested in the business of the Borrower or a Restricted Subsidiary;
(ik) Any Loan Party may make a Disposition Dispositions listed on Schedule 7.05(k);
(l) Dispositions or discounts without recourse of accounts receivable in connection with the compromise or collection thereof in the ordinary course of business;
(m) Dispositions of property pursuant to any other Loan Party and sale-leaseback transactions; provided that the fair market value of all property so Disposed of after the Closing Date shall not exceed $50,000,000;
(iin) any Subsidiary swap of assets in exchange for services or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions assets in the ordinary course of business of (A) receivables comparable or greater value or usefulness to the business of the Borrower and its Subsidiaries as a whole, as determined in connection with good faith by the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,management of the Borrower;
(iio) Dispositionsany issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(p) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, customary buy/sell arrangements between between, the joint venture or parties set forth in joint venture arrangements and similar parties),binding arrangements; and
(iiiq) Dispositions the unwinding of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted any Swap Contracts pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Law.its terms;
Appears in 3 contracts
Samples: Credit Agreement (SeaWorld Entertainment, Inc.), Credit Agreement (SeaWorld Entertainment, Inc.), Credit Agreement (SeaWorld Entertainment, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or obsolete, worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariessurplus property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries;
(b) Dispositions of furniture, fixtures inventory and equipment immaterial assets in the ordinary course of business (including allowing any registrations or other personal property any applications for registration of any immaterial IP Rights to AINC lapse or an Affiliate thereof that is leased back under be abandoned in the ERF Programordinary course of business);
(c) Dispositions of inventory in the ordinary course of business;
(d) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and that is promptly purchased or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyproperty (which replacement property is actually promptly purchased);
(d) Dispositions of property to the Borrower or any Restricted Subsidiary; provided that if the transferor of such property is a Loan Party (i) the transferee thereof must be a Loan Party, (ii) to the extent such transaction constitutes an Investment, such transaction is permitted under Section 7.02, or (iii) such Disposition shall consist of the transfer of Equity Interests in or Indebtedness of any Foreign Subsidiary to any other Foreign Subsidiary;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and permitted (other Dispositions, in each case, not otherwise permitted than by reference to this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.057.05(e); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by 7.04 and Section 7.06, 7.06 and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iiif) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,Cash Equivalents;
(ivg) leases and/or leases, subleases, licenses of Hotel Properties and assets related thereto (includingor sublicenses, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(h) transfers of property subject to Casualty Events;
(i) Dispositions of Investments in JV Entities or non-Wholly-Owned Restricted Subsidiaries to the extent required by, or made pursuant to, customary buy/sell arrangements between the parties to such JV Entity or shareholders of such non-Wholly-Owned Restricted Subsidiaries set forth in the shareholder agreements, joint venture agreements, organizational documents or similar binding agreements relating to such JV Entity or non-Wholly-Owned Restricted Subsidiary;
(j) Dispositions of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof;
(k) the unwinding of any Swap Contract pursuant to its terms;
(l) Permitted Sale Leasebacks;
(m) So long as no Event of Default would result therefrom, Dispositions not otherwise permitted pursuant to this Section 7.05 (including any Sale Leasebacks and the sale or issuance of Equity Interests in a Restricted Subsidiary); provided that (i) such Disposition shall be for fair market value as reasonably determined by the Borrower in good faith, (ii) with respect to any Disposition under this clause (m) for a purchase price in excess of the greater of (x) $55,000,000 and (y) 10.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period, as reasonably determined by the Borrower at the time of such Disposition, the Borrower or any of its Restricted Subsidiaries shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents for such Dispositions (provided, however, that for the purposes of this clause (m)(ii), the following shall be deemed to be cash: (A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Borrower or any of its Restricted Subsidiaries and the valid release of the Borrower or such Restricted Subsidiary, by all applicable creditors in writing, from all liability on such Indebtedness or other liability in connection with such Disposition, (B) securities, notes or other obligations received by the Borrower or any of its Restricted Subsidiaries from the transferee that are converted by the Borrower or any of its Restricted Subsidiaries into cash or Cash Equivalents within 180 days following the closing of such Disposition, (C) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Disposition, to the extent that the Borrower and each of the other Restricted Subsidiaries are released from any Guarantee of payment of the Borrower in connection with such Disposition and (D) aggregate non-cash consideration received by the Borrower and its Restricted Subsidiaries for all Dispositions under this clause (m) having an aggregate fair market value (determined as of the closing of the applicable Disposition for which such non-cash consideration is received) not to exceed the greater of (x) $100,000,000 and (y) 17.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period at any time outstanding (net of any non-cash consideration converted into cash and Cash Equivalents received in respect of any such non-cash consideration) and (iii) the Borrower or the applicable Restricted Subsidiary complies with the applicable provisions of Section 2.05;
(n) any Disposition not otherwise permitted pursuant to this Section 7.05 in an amount not to exceed the greater of (x) $30,000,000 and (y) 5.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period;
(o) The Borrower and its Restricted Subsidiaries may surrender or waiver of waive contractual rights and leases and settle or the settlement, release or surrender of waive contractual rights or litigation claims (including in tort) in the ordinary course of business,;
(viip) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings assets (including Equity Interests) acquired in lieu thereof connection with Permitted Acquisitions or other Investments permitted hereunder, which assets are obsolete or not used or useful to the core or principal business of the Borrower and the Restricted Subsidiaries or which Dispositions are made to obtain the approval of any similar proceeding),applicable antitrust authority in connection with a Permitted Acquisition;
(viiiq) Dispositions made any swap of assets in exchange for services or other assets of comparable or greater fair market value useful to comply with the business of the Borrower and its Restricted Subsidiaries as a whole, as determined in good faith by the Borrower;
(r) any order sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(s) [reserved];
(t) any “fee in lieu” or other Disposition of assets to any Governmental Authority that continue in use by the Borrower or any applicable requirement Restricted Subsidiary, so long as the Borrower or any Restricted Subsidiary may obtain title to such assets upon reasonable notice by paying a nominal fee;
(u) [reserved];
(v) the Transactions and the Spin-Off may be consummated; and
(w) any Disposition by the Borrower or a Restricted Subsidiary of Lawthe Capital Stock of, or indebtedness owned by, a Foreign Subsidiary to any Restricted Subsidiary pursuant to a Reorganization. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than the Borrower or any Subsidiary Guarantor, such Collateral shall be sold free and clear of the Liens created by the Loan Documents and, if requested by the Administrative Agent, upon the certification by the Borrower that such Disposition is permitted by this Agreement, the Administrative Agent or the Collateral Agent, as applicable, shall be authorized to take and shall take any actions deemed appropriate in order to effect the foregoing.
Appears in 3 contracts
Samples: Credit Agreement (Wyndham Hotels & Resorts, Inc.), Credit Agreement (Wyndham Hotels & Resorts, Inc.), Credit Agreement (Wyndham Hotels & Resorts, Inc.)
Dispositions. Make The Loan Parties will not, and will not permit any of their respective Subsidiaries to, make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furniture, fixtures inventory and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory Investments in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets real property (other than real property acquired or held as inventory) in the ordinary course of business to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(ed) Dispositions of Equity Interests of property by any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that Subsidiary to the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Wholly-Owned Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,;
(ve) Dispositions of cash and/or Cash Equivalents,expressly permitted by Section 6.03;
(vif) leases, licenses, subleases or sublicenses (iincluding the provision of open source software under an open source license) any termination of any lease granted in the ordinary course of business and on ordinary commercial terms that do not interfere in any material respect with the business of the Borrower and its Subsidiaries;
(iig) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims Dispositions (including in tortvia abandonment, permission to lapse or dedication to the public) of intellectual property rights that are no longer used or useful in the ordinary course business of business,the Borrower and its Subsidiaries as reasonably determined by the Borrower in good faith;
(viih) Restricted Payments expressly permitted by Section 6.05 and Investments expressly permitted by Section 6.06; and
(i) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or dispositions of real property) made pursuant to any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of LawSecuritization Financing.
Appears in 3 contracts
Samples: Credit Agreement (Offerpad Solutions Inc.), Credit Agreement (Offerpad Solutions Inc.), Credit Agreement (Supernova Partners Acquisition Company, Inc.)
Dispositions. Make Neither the Borrower nor any of the Restricted Subsidiaries shall, directly or indirectly, make any Disposition or enter into any agreement to make any DispositionDisposition (other than as part of or in connection with the Transaction), except:
(a) (i) Dispositions of obsolete obsolete, surplus or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions in the ordinary course of business of property no longer used or useful in the conduct of the business of the Borrower or any of its Restricted Subsidiaries and (ii) Dispositions of property no longer used or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries outside the ordinary course of business (and for consideration complying with the requirements applicable to Dispositions pursuant to clause (j) below) in an aggregate amount not to exceed $25,000,000;
(b) Dispositions of furnitureinventory, fixtures goods held for sale in the ordinary course of business and equipment immaterial assets (including allowing any registrations or other personal any applications for registration of any intellectual property to AINC lapse or an Affiliate thereof that is leased back under the ERF Program;
(cgo abandoned) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(ed) Dispositions of Equity Interests of property to the Borrower or any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05)Restricted Subsidiary; provided that if the Borrower complies with the applicable requirements transferor of Section 2.04(b)
such property is a Loan Party, (i) with respect to the Net Cash Proceeds of transferee thereof must be a Loan Party or (ii) if such Dispositiontransaction constitutes an Investment, such transaction is permitted under Section 7.02;
(fe) To to the extent constituting Dispositions, (i) the granting of Liens permitted by Section 7.01, the making of Investments permitted by Section 7.037.02, mergers, consolidations and liquidations permitted by Section 7.04 (iiother than Section 7.04(g)) and Restricted Payments permitted by Section 7.06;
(f) Dispositions made on the Closing Date to consummate the Transaction;
(g) Dispositions of Cash Equivalents;
(h) leases, subleases, licenses or sublicenses (including the provision of software or the licensing of other intellectual property rights), in each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(i) transfers of property subject to Casualty Events;
(j) Dispositions of property not otherwise permitted under this Section 7.05 in an aggregate amount during the term of this Agreement not to exceed $500,000,000; provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Default exists), no Default shall exist or would result from such Disposition, (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $5,000,000, the Borrower or any of its Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents (in each case, free and clear of all Liens at the time received, other than nonconsensual Liens permitted by Section 7.01 and Liens permitted by Sections 7.01(a), (f), (k), (p), (q), (bb) and (cc) and clauses (i) and (ii) of Section 7.01(r)); provided, however, that for the purposes of this clause (j)(ii), the following shall be deemed to be cash: (A) any liabilities (as shown on the Borrower’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary associated with the assets or Restricted Subsidiary sold in such Disposition that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by such the Borrower or the applicable Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition, and (C) aggregate non-cash consideration received by the Borrower or the applicable Restricted Subsidiary having an aggregate fair market value (determined as of the closing of the applicable Disposition for which such non-cash consideration is received) not to exceed $10,000,0000 at any time (net of any non-cash consideration converted into cash and Cash Equivalents), and (iii) Liens permitted to the extent that the aggregate amount of Net Proceeds received by the Borrower or a Restricted Subsidiary from all Dispositions made pursuant to this Section 7.017.05(j) exceeds $250,000,000, all Net Proceeds in excess of such amount shall be applied to prepay Term Loans in accordance with Section 2.05(b)(ii) and may not be reinvested in the business of the Borrower or a Restricted Subsidiary;
(ik) Any Loan Party may make a Disposition Dispositions listed on Schedule 7.05(k);
(l) Dispositions or discounts without recourse of accounts receivable in connection with the compromise or collection thereof in the ordinary course of business;
(m) Dispositions of property pursuant to any other Loan Party and sale-leaseback transactions; provided that the fair market value of all property so Disposed of after the Closing Date shall not exceed $50,000,000;
(iin) any Subsidiary swap of assets in exchange for services or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions assets in the ordinary course of business of (A) receivables comparable or greater value or usefulness to the business of the Borrower and its Subsidiaries as a whole, as determined in connection with good faith by the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,management of the Borrower;
(iio) DispositionsUnrestricted Subsidiary; any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an (p) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, customary buy/sell arrangements between between, the joint venture or parties set forth in joint venture arrangements and similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Law.binding arrangements; and
Appears in 3 contracts
Samples: Credit Agreement (SeaWorld Entertainment, Inc.), Credit Agreement (SeaWorld Entertainment, Inc.), Credit Agreement (SeaWorld Entertainment, Inc.)
Dispositions. Make any Disposition of any of its property (other than any Disposition having a fair market value not in excess of (x) $1,000,000 for any single transaction or enter into any agreement to make any Dispositionseries of related transactions or (y) the greater of $3,000,000 and 5.0% of Consolidated EBITDA of Holdings as of the last day of the most recently ended Test Period in the aggregate for all such Dispositions described in this parenthetical), except:
(a) Dispositions of obsolete obsolete, used, surplus, negligible, uneconomical or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of Holdings or any Restricted Subsidiary or Dispositions of non-core assets and property or assets and property otherwise commercially unreasonable to retain;
(b) Dispositions of furniture, fixtures inventory and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory immaterial assets in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by Holdings or any Restricted Subsidiary to the Borrower or another Restricted Subsidiary; provided that if the transferor of such property is a Loan Party (x) the transferee thereof must be a Loan Party or (y) to the extent such transaction constitutes an Investment in a Restricted Subsidiary that is not a Loan Party, such transaction is permitted by Section 7.02;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and permitted (other Dispositions, in each case, not otherwise permitted than by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in reference to this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.037.02, (ii) Restricted Payments permitted by Section 7.06, 7.04 and (iii) Section 7.06 and Liens permitted by Section 7.01;
(if) Any Loan Party may make a Disposition to any other Loan Party Dispositions of cash and Cash Equivalents;
(iig) any Subsidiary Dispositions of accounts receivable in connection with the collection or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andcompromise thereof;
(h) Parent leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of Holdings or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:Restricted Subsidiary;
(i) transfers of property subject to Casualty Events;
(j) Dispositions in the ordinary course of business consisting of (A) receivables the abandonment or lapse of IP Rights which, in connection with the collectionreasonable good faith determination of Holdings, settlement are not material to the conduct of the business of Holdings or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,Restricted Subsidiary;
(iik) Dispositions, Dispositions of Investments in JV Entities to the extent required by, or made pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture the JV Entity parties set forth in, JV Entity arrangements and similar binding arrangements (i) in substantially the form as such arrangements are in effect on the Closing Date or similar parties(ii) to the extent that the Net Cash Proceeds of such Disposition are either reinvested or applied to prepay the Initial Term Loans pursuant to Section 2.06(b),;
(iiil) Dispositions in connection with any Permitted Tax Restructuring;
(m) [reserved];
(n) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease tangible property in the ordinary course of business as part of a like-kind exchange under Section 1031 of the Code;
(o) voluntary terminations of Swap Contracts;
(p) Dispositions of a non-core line of business (and related property and assets) for which a commitment to Dispose of such non-core line of business has been entered into on or prior to the first anniversary of the Closing Date and which have actually been Disposed of within 18 months from the Closing Date;
(q) Permitted Sale Leasebacks; provided, that the amount of such Permitted Sale Leasebacks since the Closing Date shall not, in the aggregate, exceed the greater of $10,000,000 and 19.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period;
(r) Dispositions of property by Holdings or any Restricted Subsidiary not otherwise permitted under this Section 7.05; provided that (i) at the time of execution of any binding agreement in respect of such Disposition (or if there is no such agreement entered into, at the time of such Disposition), no Event of Default shall exist or would result from such Disposition, (ii) any surrender such Disposition of property for a purchase price in excess of $2,500,000 is made for fair market value, (iii) with respect to any Disposition (or waiver series of contractual rights related Dispositions) under this Section 7.05(r) Holdings or any of the settlement, release or surrender Restricted Subsidiaries shall receive not less than 75% of contractual rights or litigation claims (including in tort) such consideration in the ordinary course form of business,cash or Cash Equivalents on a cumulative basis for all such Dispositions following the Closing Date (provided that for the purposes of this clause (r)(ii), the following shall be deemed to be cash: (A) the assumption by the transferee of Indebtedness or other liabilities (other than Indebtedness or liabilities that are subordinated in right of payment to the Loan Obligations) contingent or otherwise of Holdings and its Restricted Subsidiaries and the valid release of Holdings or such Restricted Subsidiary by all applicable creditors in writing, from all liability on such Indebtedness or other liability in connection with such Disposition, (B) securities, notes or other obligations received by Holdings or any of its Restricted Subsidiaries from the transferee that are converted by Holdings or such Restricted Subsidiaries into cash or Cash Equivalents within 180 days following the closing of such Disposition, (C) Indebtedness (other than Indebtedness or liabilities that are subordinated in right of payment to the Loan Obligations) of any Restricted Subsidiary that is disposed of pursuant to such Disposition and that is no longer a Restricted Subsidiary as a result of such Disposition, to the extent that Holdings and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Disposition and (D) aggregate non-cash consideration received by Holdings and its Restricted Subsidiaries for all Dispositions under this clause (r) having an aggregate fair market value (determined as of the closing of the applicable Disposition for which such non-cash consideration is received) not to exceed the greater of (x) $5,000,000 and (y) 10.0% of Consolidated EBITDA of Holdings for the most recently ended Test Period at any time outstanding (net of any non-cash consideration converted into cash and Cash Equivalents received in respect of any such non-cash consideration) and (iv) the Net Cash Proceeds of such Disposition are either reinvested or applied to prepay the Initial Term Loans pursuant to Section 2.06(b);
(viis) other Dispositions in an amount not to exceed the greater of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viiix) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Law.$3,000,000 and
Appears in 3 contracts
Samples: Credit and Guaranty Agreement (Latham Group, Inc.), Credit and Guaranty Agreement (Latham Group, Inc.), Credit and Guaranty Agreement (Latham Group, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete used, obsolete, damaged, worn-out or worn out property surplus equipment, or property determined by Borrower to no longer be necessary useful in the conduct of the business or operations of Borrower or its Subsidiaries or JV Subsidiariesotherwise economically impracticable to maintain, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions Disposition of furnitureinventory, fixtures goods held for sale and equipment other assets and non-exclusive licenses of intellectual property (including on an intercompany basis and including allowing any issuances, registrations or other personal any application for registration of any intellectual property that are not material to AINC the business of the Borrower and the Restricted Subsidiaries to lapse or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory become abandoned), in each case in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(ed) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 property (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05)owned Equity Interests) to the Borrower or to another Restricted Subsidiary; provided that if the Borrower complies with the applicable requirements transferor of Section 2.04(b)
such property is a Loan Party, (i) with respect to the Net Cash Proceeds of transferee thereof must be a Loan Party or (ii) if such Dispositiontransaction constitutes an Investment, it is permitted under Section 7.06;
(e) Dispositions permitted by Section 7.04 or Section 7.06;
(f) To non-exclusive licenses of IP Rights in the ordinary course of business;
(g) Dispositions of accounts receivable in connection with the collection or compromise thereof;
(h) licenses, sublicenses, leases or subleases (including the provision of software or the licensing of other intellectual property rights) and termination thereof, in each case which do not interfere in any material respect with the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(i) Dispositions of cash and Cash Equivalents;
(j) to the extent constituting Dispositions, Recovery Events;
(k) Dispositions or discounts without recourse of accounts receivable in connection with the compromise or collection thereof in the ordinary course of business;
(l) Dispositions of property pursuant to sale-leaseback transactions permitted by Section 7.13;
(m) the Disposition of non-core or non-strategic assets acquired in connection with a Permitted Acquisition or similar Investment; provided that (x) to the extent required by Section 2.06(b)(ii), such Net Cash Proceeds from any such sale are reinvested or applied in prepayment of the Loans in accordance with the provisions of Section 2.06(b)(v), (y) immediately after giving effect thereto, no Event of Default would exist and (z) the fair market value of such non-core or non-strategic assets (determined as of the date of acquisition thereof by the applicable Loan Party or Restricted Subsidiary, as the case may be) so Disposed shall not exceed twenty-five percent (25%) of the purchase price paid for all such assets acquired in such Permitted Acquisition;
(n) the termination of a lease due to the default of the landlord thereunder or pursuant to any right of termination of the tenant under the lease;
(o) Dispositions of equipment or real property to the extent that (i) Investments permitted by Section 7.03, such property is exchanged for credit against the purchase price of similar replacement property or (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01the proceeds of such Disposition are reasonably promptly applied to the purchase price of such similar replacement property;
(ip) Any Loan Party may make a Disposition the lease or sub-lease of any real or personal property in the ordinary course of business and the termination or non-renewal of any real property lease not used or not necessary to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) the operations of a Loan Party may make a Disposition to any Loan Party the Borrower or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andRestricted Subsidiary;
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(iq) Dispositions in the ordinary course of business consisting of (A) receivables the abandonment of intellectual property rights which, in connection with the collectionreasonable good faith determination of the Borrower, settlement or compromise thereof (including any discount and/or forgiveness thereof)are not material to the conduct of the business of the Borrower and its Subsidiaries, (B) equipment, (C) other current assets or (D) immaterial assets,taken as a whole;
(iir) Dispositions, Dispositions of Investments in joint ventures or any Restricted Subsidiaries that are not wholly owned Subsidiaries to the extent required by, or made pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(iiis) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
(t) Dispositions in connection with the termination or unwinding of Swap Contracts;
(u) Dispositions of non-core assets (which may include non-core real properties) currently owned Equity Interests or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses Indebtedness of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,Unrestricted Subsidiaries;
(v) Dispositions exchanges or swaps, including transactions covered by Section 1031 of cash and/or Cash Equivalents,
the Code (vior any comparable provision of any foreign jurisdiction), of property or assets so long as the exchange or swap is made for fair value (as reasonably determined by the Borrower) for like property or assets; provided that (i) any termination within ninety (90) days of any lease such exchange or swap, in the ordinary course case of business any Loan Party and to the extent such property does not constitute Excluded Property, the Administrative Agent has a perfected Lien having the same priority as any Lien held on the property so exchanged or swapped and (ii) any surrender Net Cash Proceeds received as a “cash boot” in connection with any such transaction shall be applied and/or reinvested as (and to the extent) required by Section 2.06;
(w) any merger, consolidation, Disposition or waiver conveyance, the sole purpose and effect of contractual rights which is to reincorporate or the settlement, release or surrender of contractual rights or litigation claims reorganize (including i) any U.S. Subsidiary in tort) another jurisdiction in the ordinary course U.S. or (ii) any Non-U.S. Subsidiary in the U.S. or any other jurisdiction; provided, that any Loan Party involved in such transaction does not become an Excluded Subsidiary (except to the extent that it is or becomes an Immaterial Subsidiary so long as it remains a Loan Party hereunder) as a result of business,such transaction and any Restricted Subsidiary does not become an Unrestricted Subsidiary as a result of such transaction unless the designation of such Restricted Subsidiary as an Unrestricted Subsidiary is permitted under Section 7.15 at such time;
(viix) Dispositions of property subject joint ventures to foreclosurethe extent required by, casualty, eminent domain or condemnation proceedings (including made pursuant to customary buy/sell arrangements between the joint venture parties set forth in lieu thereof or any similar proceeding),joint venture arrangements and Dispositions set forth on Schedule 7.05;
(viiiy) Dispositions made to comply with any order not otherwise permitted under this Section 7.05, so long as (i) no Default or Event of Default has occurred and is continuing and (ii) the aggregate fair market value of any Governmental Authority such Dispositions in any fiscal year shall not exceed $15,000,000; and
(z) Dispositions not otherwise permitted under this Section 7.05, so long as (i) no Default or Event of Default has occurred and is continuing, (ii) at least seventy-five percent (75%) of the consideration paid in connection therewith shall be cash or Cash Equivalents paid contemporaneously with consummation of the transaction, (iii) the consideration paid in connection therewith shall be in an amount not less than the fair market value of the property disposed of (as reasonably determined by the Borrower), (iv) such transaction does not involve the Disposition of a minority Equity Interest in any applicable requirement Loan Party (other than the Borrower) and (v) such Disposition does not involve a Disposition of Lawreceivables other than receivables owned by or attributable to other property concurrently being disposed of in a Disposition otherwise permitted under this Section 7.05. To the extent any Collateral is disposed of as expressly permitted by this Section 7.05 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Collateral Documents, and the Administrative Agent or the Collateral Agent, as applicable, shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 3 contracts
Samples: Credit Agreement (Ii-Vi Inc), Credit Agreement (Ii-Vi Inc), Credit Agreement (Ii-Vi Inc)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete obsolete, surplus or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful or economically practicable to maintain in the conduct of the business of Holdings, the Borrowers and the other Restricted Subsidiaries (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned);
(b) Dispositions of furnitureinventory, fixtures goods held for sale and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory immaterial assets in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the net proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(ed) (A) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions7.04, (iB) Investments permitted by Section 7.037.02, (iiC) Restricted Payments permitted by Section 7.06, 7.06 and (iiiD) Liens permitted by Section 7.017.01 (in each case, other than by reference to this Section 7.05 (or any clause under this Section 7.05));
(e) Dispositions by Holdings or any Restricted Subsidiary of property pursuant to sale-leaseback transactions; provided that with respect to any sale-leaseback transaction with a total consideration in excess of $75,000,000, at least 75% of the consideration to be paid to Holdings or such Restricted Subsidiary, as applicable, shall consist of cash;
(f) Dispositions of cash and Cash Equivalents;
(g) (i) Any Loan Party may make a Disposition to any other Loan Party Dispositions of accounts receivable in connection with the collection or compromise thereof and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) Dispositions of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary account receivables so long as the Net Cash Proceeds of any Loan Party; andsale or transfer pursuant to this clause (ii) are offered to prepay the Term Loans pursuant to Section 2.05(b)(ii);
(h) Parent licensing or any Subsidiary or Controlled JV Subsidiary sublicensing of Parent may make or effect, as applicable:
(i) Dispositions IP Rights in the ordinary course of business on customary terms;
(i) sales, Disposition or contributions of property (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof)between Loan Parties, (B) equipmentbetween Restricted Subsidiaries (other than Loan Parties), (C) other current assets by Restricted Subsidiaries that are not Loan Parties to the Loan Parties or (D) immaterial assets,by Loan Parties to any Restricted Subsidiary that is not a Loan Party, provided that (1) the portion (if any) of any such Disposition made for less than fair market value and (2) any non-cash consideration received in exchange for any such Disposition, shall in each case constitute an Investment in such Restricted Subsidiary and, if the transferor of such property is a Loan Party and the transferee thereof is a non-Loan Party, such sale, Disposition or contribution of property shall otherwise comply with Section 7.02;
(iij) Dispositionsleases, to the extent required pursuant to the terms subleases, licenses, sublicenses or other occupancy arrangements of any agreement with respect to a JV Subsidiary property (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iiiother than IP Rights) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and which do not materially interfere with the business of the Borrower Parties;
(k) transfers of property subject to Casualty Events upon receipt of the Net Cash Proceeds of such Casualty Event;
(l) [reserved];
(m) Dispositions of Investments (including Equity Interests) in Joint Ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(n) the transfer for fair value of property (including Equity Interests of Subsidiaries) to another Person in connection with a joint venture arrangement with respect to the transferred property; provided that such transfer is permitted under Section 7.02(j), (o) or (s);
(o) the unwinding of Swap Contracts permitted hereunder pursuant to their terms;
(p) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(q) any Disposition of any asset between or among the Borrower Parties as a substantially concurrent interim Disposition in connection with a Disposition otherwise permitted pursuant to this Section 7.05;
(r) the sale or other transfer of Permitted Receivables Financing Assets (or a fractional undivided interest therein), or participations therein, to a Permitted Receivables Financing Subsidiary or in factoring or similar transactions;
(s) Dispositions by Holdings or any Restricted Subsidiary not otherwise permitted under this Section 7.05, provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default exists), no Event of Default shall exist or would result from such Disposition and (ii) with respect to any surrender Disposition with a purchase price in excess of $75,000,000, at least 75% of the consideration to be paid to Holdings or waiver such Restricted Subsidiary, as applicable, shall consist of contractual rights cash; provided, however, that for the purposes of this clause (s)(ii), the following shall be deemed to be cash: (A) any liabilities (as shown on Holdings or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of Holdings or such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee with respect to the applicable Disposition and for which Holdings or the settlementRestricted Subsidiaries shall have been validly released by all applicable creditors in writing, release (B) any securities received by Holdings or surrender such Restricted Subsidiary from such transferee that are converted by Holdings or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of contractual rights the cash or litigation claims Cash Equivalents received in the conversion) within 180 days following the closing of the applicable Disposition; and (including C) any Designated Non-Cash Consideration in tortrespect of such Disposition having an aggregate fair market value, taken together with the Designated Non-Cash Consideration in respect of all other Dispositions, not in excess of the greater of $175,000,000 and 2.50% of Consolidated Total Assets (with the fair market value of each item of Designated Non-Cash Consideration being measured as of the time received);
(t) the Disposition of any Unrestricted Subsidiary; and
(u) the Disposition of assets acquired pursuant to or in order to effectuate a Permitted Acquisition which assets are (i) obsolete or (ii) not used or useful to the core or principal business of Holdings, the Borrowers and the Restricted Subsidiaries; provided, however, that (x) any Disposition of any property pursuant to Section 7.05(b) (other than with respect to immaterial assets Disposed of in the ordinary course of business,
), (viic), (e), (n), (s) Dispositions or (t) shall be for no less than the fair market value of such property subject at the time of such Disposition and (y) notwithstanding anything to foreclosurethe contrary in this Agreement, casualtyHoldings, eminent domain the Borrowers and their Restricted Subsidiaries shall not directly or condemnation proceedings (including indirectly make any Investment in, or Disposition to, an Unrestricted Subsidiary in lieu thereof the form of transferring legal title to, or licensing on an exclusive basis, as applicable, intellectual property that, at the time of making such Investment, is material to the businesses of Holdings, the Borrowers and their Restricted Subsidiaries, taken as a whole. To the extent any similar proceeding),
(viii) Dispositions made Collateral is Disposed of as expressly permitted by this Section 7.05 to comply with any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent is authorized to and shall take any actions deemed appropriate in order of any Governmental Authority or any applicable requirement of Lawto effect the foregoing.
Appears in 3 contracts
Samples: Credit Agreement (Axalta Coating Systems Ltd.), Credit Agreement (Axalta Coating Systems Ltd.), Credit Agreement (Axalta Coating Systems Ltd.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete used, surplus, obsolete, unproductive or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by any Restricted Subsidiary to the Borrower or to another Restricted Subsidiary; provided that if the transferor of such property is a Domestic Obligor, either (i) the transferee thereof must be a Domestic Obligor or (ii) the aggregate book value of all assets of the Domestic Obligors after giving effect to such transactions (and any transactions effectuated substantially simultaneously therewith) constitutes 75% or more of the book value of all assets of KBR and its Wholly-Owned Restricted Subsidiaries on a consolidated basis as of the end of the most recently ended fiscal year for which financial statements have been delivered pursuant to Section 6.01;
(e) Dispositions permitted by Section 7.04 and Permitted Liens;
(f) Dispositions by the Borrower and its Restricted Subsidiaries of assets that are necessary or advisable, in the good faith judgment of the Borrower, in order to obtain the approval of any Governmental Authority to consummate or avoid the prohibition or other restrictions on the consummation of any Permitted Acquisition or any Investment permitted hereunder;
(g) leases, subleases, licenses or sublicenses granted in the ordinary course of business, which could not reasonably be expected to have a Material Adverse Effect;
(h) the sale or other transfer of Qualified Securitization Assets in connection with the securitization thereof and/or factoring arrangements, which sale is non-recourse to the extent customary in securitizations and/or factoring arrangements and consistent with past practice and, to the extent constituting Indebtedness of the Borrower or any Restricted Subsidiary, within the limits set forth in Section 7.02(f);
(i) Dispositions of cash and Cash Equivalents;
(j) Dispositions of assets within 365 days after the acquisition thereof if such assets are outside the principal business areas to which the assets acquired, taken as a whole, relate;
(k) in order to collect receivables in the ordinary course of business, resolve disputes that occur in the ordinary course of business or engage in transactions with government agencies in the ordinary course of business, Disposition of, discount or otherwise compromise of for less than the face value thereof, notes or accounts receivable, so long as no such Disposition, discount or other compromise gives rise to any Indebtedness, any Lien on any note or account receivable, or is made as part of any accounts receivable securitization program;
(l) Dispositions of shares of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, of its Subsidiaries in each case, not otherwise permitted by this Section 7.05 (including, for order to qualify members of the avoidance board of doubt, Dispositions in excess directors or equivalent governing body of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the such Subsidiary if required by applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such DispositionLaw;
(fm) To Dispositions of condemned property to the extent constituting Dispositions, respective Governmental Authority that has condemned the same (i) Investments permitted whether by Section 7.03, (ii) Restricted Payments permitted by Section 7.06deed in lieu of condemnation or otherwise), and (iii) Liens permitted by Section 7.01Dispositions of properties that have been subject to a casualty to the respective insurer of such property or its designee as part of an insurance settlement;
(in) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party Dispositions by the Borrower or any other Subsidiary of its Restricted Subsidiaries of Equity Interests in (and assets of) Unrestricted Subsidiaries held by the Borrower or Controlled JV Subsidiary any of any Loan Party; andits Restricted Subsidiaries;
(ho) Parent the surrender or any Subsidiary waiver of obligations of trade creditors or Controlled JV Subsidiary of Parent may make customers or effect, as applicable:
(i) Dispositions other contract rights that were incurred in the ordinary course of business of the Borrower or any Restricted Subsidiary pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer, or compromise, settlement, release or surrender of a contract, tort or other litigation claim, arbitration or other disputes;
(Ap) receivables lapse, abandonment or other Disposition of intellectual property, that is in connection the reasonable business judgment of the Borrower, no longer used or useful in the conduct of its business or otherwise uneconomical to prosecute or maintain, in each case with respect to all of the collectionforegoing in the ordinary course of business;
(q) Dispositions not otherwise permitted pursuant to this Section 7.05; provided that:
(i) at the time of such Disposition, settlement no Default or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets Event of Default shall exist or (D) immaterial assetswould result from such Disposition except if such Disposition is made pursuant to an agreement entered into at a time when no Default or Event of Default exists,
(ii) Dispositions, to such Disposition is made for fair market value (as reasonably determined by the extent required pursuant to Borrower and measured as of the terms of any agreement with respect to date a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar partieslegally binding commitment for such Disposition was entered into),
(iii) Dispositions the consideration received shall be no less than 75% in cash, Cash Equivalents and/or Designated Non-Cash Consideration (with no more than 25% of non-core assets (which may include non-core real properties) currently owned or acquired the aggregate consideration being in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,the form of Designated Non Cash Consideration, as such percentages are measured as of the date a legally binding commitment for such Disposition was entered into, and
(iv) leases and/or licenses Net Cash Proceeds thereof are applied in accordance with Section 2.05(b);
(r) any Exempt Sale and Leaseback Transaction;
(s) the disposition, termination or unwinding of Hotel Properties and assets related thereto Swap Obligations permitted hereunder or any Permitted Bond Hedge Transaction permitted hereunder;
(including, without limitation, intellectual propertyt) in Dispositions by the ordinary course Borrower or any Restricted Subsidiary of business,any Disqualified Stock (including any Permitted Convertible Indebtedness) to the extent permitted under Section 7.02;
(u) Dispositions by the Borrower or any Restricted Subsidiary of any Permitted Warrant Transaction substantially concurrently with any issuance or sale of Permitted Convertible Indebtedness permitted hereunder;
(v) Dispositions by the Borrower or any Restricted Subsidiary of cash and/or Cash Equivalents,its Equity Interests (excluding Disqualified Stock) to the extent not constituting a Change of Control;
(viw) Dispositions by any Restricted Subsidiary of its Equity Interests constituting directors’ qualifying shares or share or interests required to be held by foreign nationals or other third parties to the extend required by applicable law;
(ix) any termination swap of assets in exchange for services or assets by the Borrower or any lease Restricted Subsidiary in exchange for services or assets of the same type in the ordinary course of business of comparable or greater value or usefulness to the business of the Borrower and its Subsidiaries as a whole, as determined in good faith by the management of the Borrower; and
(y) Dispositions by the Borrower or any Restricted Subsidiary of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements. provided, however, that any Disposition pursuant to this Section 7.05 (other than pursuant to clauses (a), (d), (j), (l), (o) or (p)) shall be for no less than the fair market value of such property at the time of such Disposition (as reasonably determined by the Borrower). For the purposes of Subsection 7.05(q), the following shall be deemed to be cash: (1) the assumption of Indebtedness of the Borrower (other than Disqualified Stock of the Borrower) or any Restricted Subsidiary and the release of the Borrower or such Restricted Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Disposition, (2) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Disposition, to the extent that the Borrower and each other Restricted Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition and (ii3) any surrender securities, notes or waiver of contractual rights or other obligations received by the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof Borrower or any similar proceeding),
Restricted Subsidiary from such transferee that are converted by the Borrower or Restricted Subsidiary into cash, to the extent of the cash received in that conversion, within one hundred eighty (viii180) Dispositions made to comply with any order days following the closing of any Governmental Authority or any applicable requirement of Lawsuch Disposition.
Appears in 3 contracts
Samples: Credit Agreement (Kbr, Inc.), Credit Agreement (Kbr, Inc.), Credit Agreement (Kbr, Inc.)
Dispositions. Make Neither the Borrower nor any of the Restricted Subsidiaries shall, directly or indirectly, make any Disposition or enter into any agreement to make any DispositionDisposition (other than as part of or in connection with the Transaction), except:
(a) (i) Dispositions of obsolete obsolete, surplus or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions in the ordinary course of business of property no longer used or useful in the conduct of the business of the Borrower or any of its Restricted Subsidiaries and (ii) Dispositions of property no longer used or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries outside the ordinary course of business (and for consideration complying with the requirements applicable to Dispositions pursuant to clause (j) below) in an aggregate amount not to exceed $25,000,000;
(b) Dispositions of furnitureinventory, fixtures goods held for sale in the ordinary course of business and equipment immaterial assets (including allowing any registrations or other personal any applications for registration of any intellectual property to AINC lapse or an Affiliate thereof that is leased back under the ERF Program;
(cgo abandoned) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(ed) Dispositions of Equity Interests of property to the Borrower or any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05)Restricted Subsidiary; provided that if the Borrower complies with the applicable requirements transferor of Section 2.04(b)
such property is a Loan Party, (i) with respect to the Net Cash Proceeds of transferee thereof must be a Loan Party or (ii) if such Dispositiontransaction constitutes an Investment, such transaction is permitted under Section 7.02;
(fe) To to the extent constituting Dispositions, (i) the granting of Liens permitted by Section 7.01, the making of Investments permitted by Section 7.037.02, mergers, consolidations and liquidations permitted by Section 7.04 (iiother than Section 7.04(g)) and Restricted Payments permitted by Section 7.06;
(f) Dispositions made on the Closing Date to consummate the Transaction;
(g) Dispositions of Cash Equivalents;
(h) leases, subleases, licenses or sublicenses (including the provision of software or the licensing of other intellectual property rights), in each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(i) transfers of property subject to Casualty Events;
(j) Dispositions of property not otherwise permitted under this Section 7.05 in an aggregate amount during the term of this Agreement not to exceed $500,000,000; provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Default exists), no Default shall exist or would result from such Disposition, (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $5,000,000, the Borrower or any of its Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents (in each case, free and clear of all Liens at the time received, other than nonconsensual Liens permitted by Section 7.01 and Liens permitted by Sections 7.01(a), (f), (k), (p), (q), (bb) and (cc) and clauses (i) and (ii) of Section 7.01(r)); provided, however, that for the purposes of this clause (j)(ii), the following shall be deemed to be cash: (A) any liabilities (as shown on the Borrower’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary associated with the assets or Restricted Subsidiary sold in such Disposition that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by such the Borrower or the applicable Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition, and (C) aggregate non-cash consideration received by the Borrower or the applicable Restricted Subsidiary having an aggregate fair market value (determined as of the closing of the applicable Disposition for which such non-cash consideration is received) not to exceed $10,000,0000 at any time (net of any non-cash consideration converted into cash and Cash Equivalents), and (iii) Liens permitted to the extent that the aggregate amount of Net Proceeds received by the Borrower or a Restricted Subsidiary from all Dispositions made pursuant to this Section 7.017.05(j) exceeds $250,000,000, all Net Proceeds in excess of such amount shall be applied to prepay Term Loans in accordance with Section 2.05(b)(ii) and may not be reinvested in the business of the Borrower or a Restricted Subsidiary;
(ik) Any Loan Party may make a Disposition Dispositions listed on Schedule 7.05(k);
(l) Dispositions or discounts without recourse of accounts receivable in connection with the compromise or collection thereof in the ordinary course of business;
(m) Dispositions of property pursuant to any other Loan Party and sale-leaseback transactions; provided that the fair market value of all property so Disposed of after the Closing Date shall not exceed $50,000,000;
(iin) any Subsidiary swap of assets in exchange for services or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions assets in the ordinary course of business of (A) receivables comparable or greater value or usefulness to the business of the Borrower and its Subsidiaries as a whole, as determined in connection with good faith by the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,management of the Borrower;
(iio) Dispositionsany issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(p) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, customary buy/sell arrangements between between, the joint venture or parties set forth in joint venture arrangements and similar parties),binding arrangements; and
(iiiq) Dispositions the unwinding of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted any Swap Contracts pursuant to its terms; provided that any Disposition of any property pursuant to Section 7.03 in an aggregate amount not greater 7.05(j) or (m) shall be for no less than $10,000,000,
(iv) leases and/or licenses the fair market value of Hotel Properties such property at the time of such Disposition. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than a Loan Party, such Collateral shall be sold free and assets related thereto (includingclear of the Liens created by the Loan Documents, without limitation, intellectual property) in and the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights Administrative Agent or the settlementCollateral Agent, release or surrender of contractual rights or litigation claims (including as applicable, shall be authorized to take any actions deemed appropriate in tort) in order to effect the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Lawforegoing.
Appears in 3 contracts
Samples: Credit Agreement (SeaWorld Entertainment, Inc.), Credit Agreement (SeaWorld Entertainment, Inc.), Credit Agreement (SeaWorld Entertainment, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or obsolete, worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariessurplus property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries;
(b) Dispositions of furniture, fixtures inventory and equipment immaterial assets in the ordinary course of business (including allowing any registrations or other personal property any applications for registration of any immaterial IP Rights to AINC lapse or an Affiliate thereof that is leased back under be abandoned in the ERF Programordinary course of business);
(c) Dispositions of inventory in the ordinary course of business;
(d) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and that is promptly purchased or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyproperty (which replacement property is actually promptly purchased);
(d) Dispositions of property to the Borrower or any Restricted Subsidiary; provided that if the transferor of such property is a Loan Party (i) the transferee thereof must be a Loan Party, (ii) to the extent such transaction constitutes an Investment, such transaction is permitted under Section 7.02, or (iii) such Disposition shall consist of the transfer of Equity Interests in or Indebtedness of any Foreign Subsidiary to any other Foreign Subsidiary;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and permitted (other Dispositions, in each case, not otherwise permitted than by reference to this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.057.05(e); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by 7.04 and Section 7.06, 7.06 and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iiif) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,Cash Equivalents;
(ivg) leases and/or leases, subleases, licenses of Hotel Properties and assets related thereto (includingor sublicenses, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(h) transfers of property subject to Casualty Events;
(i) Dispositions of Investments in JV Entities or non-Wholly-Owned Restricted Subsidiaries to the extent required by, or made pursuant to, customary buy/sell arrangements between the parties to such JV Entity or shareholders of such non-Wholly-Owned Restricted Subsidiaries set forth in the shareholder agreements, joint venture agreements, organizational documents or similar binding agreements relating to such JV Entity or non-Wholly-Owned Restricted Subsidiary;
(j) Dispositions of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof;
(k) the unwinding of any Swap Contract pursuant to its terms;
(l) Permitted Sale Leasebacks;
(m) so long as no Event of Default would result therefrom, Dispositions not otherwise permitted pursuant to this Section 7.05 (including any Sale Leasebacks and the sale or issuance of Equity Interests in a Restricted Subsidiary); provided that (i) such Disposition shall be for fair market value as reasonably determined by the Borrower in good faith, (ii) with respect to any Disposition under this clause (m) for a purchase price in excess of the greater of (x) $60,000,000 and (y) 10.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period, as reasonably determined by the Borrower at the time of such Disposition, the Borrower or any of its Restricted Subsidiaries shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents for such Dispositions (provided, however, that for the purposes of this clause (m)(ii), the following shall be deemed to be cash: (A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Borrower or any of its Restricted Subsidiaries and the valid release of the Borrower or such Restricted Subsidiary, by all applicable creditors in writing, from all liability on such Indebtedness or other liability in connection with such Disposition, (B) securities, notes or other obligations received by the Borrower or any of its Restricted Subsidiaries from the transferee that are converted by the Borrower or any of its Restricted Subsidiaries into cash or Cash Equivalents within 180 days following the closing of such Disposition, (C) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Disposition, to the extent that the Borrower and each of the other Restricted Subsidiaries are released from any Guarantee of payment of the Borrower in connection with such Disposition and (D) aggregate non-cash consideration received by the Borrower and its Restricted Subsidiaries for all Dispositions under this clause (m) having an aggregate fair market value (determined as of the closing of the applicable Disposition for which such non-cash consideration is received) not to exceed the greater of (x) $150,000,000 and (y) 25.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period at any time outstanding (net of any non-cash consideration converted into cash and Cash Equivalents received in respect of any such non-cash consideration) and (iii) the Borrower or the applicable Restricted Subsidiary complies with the applicable provisions of Section 2.05;
(n) any Disposition not otherwise permitted pursuant to this Section 7.05 in an amount not to exceed the greater of (x) $45,000,000 and (y) 7.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period;
(o) the Borrower and its Restricted Subsidiaries may surrender or waiver of waive contractual rights and leases and settle or the settlement, release or surrender of waive contractual rights or litigation claims (including in tort) in the ordinary course of business,;
(viip) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings assets (including Equity Interests) acquired in lieu connection with Permitted Acquisitions or other Investments permitted hereunder, which assets are obsolete or not used or useful to the core or principal business of the Borrower and the Restricted Subsidiaries or which Dispositions are made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition;
(q) any swap of assets in exchange for services or other assets of comparable or greater fair market value useful to the business of the Borrower and its Restricted Subsidiaries as a whole, as determined in good faith by the Borrower;
(r) any sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(s) Dispositions of Securitization Assets or Receivables Assets, or participations therein, in connection with any Qualified Securitization Financing or the disposition of an account receivable in connection with the collection or compromise thereof in the ordinary course of business or consistent with past practice;
(t) Dispositions conducted in connection with any Reorganization;
(u) [reserved];
(v) Dispositions conducted in connection with a REIT Conversion Transaction for so long as the Borrower (or its applicable parent entity) is pursuing a REIT Election in good faith and the REIT Conversion Transaction Requirement has been satisfied; and
(w) any Disposition by the Borrower or a Restricted Subsidiary of the Equity Interests of, or indebtedness owned by, a Foreign Subsidiary to any Restricted Subsidiary pursuant to a Reorganization. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than the Borrower or any similar proceeding),
(viii) Dispositions made Subsidiary Guarantor, such Collateral shall be sold free and clear of the Liens created by the Loan Documents and, if requested by the Administrative Agent, upon the certification by the Borrower that such Disposition is permitted by this Agreement, the Administrative Agent or the Collateral Agent, as applicable, shall be authorized to comply with take and shall take any actions deemed appropriate in order of any Governmental Authority or any applicable requirement of Lawto effect the foregoing.
Appears in 3 contracts
Samples: Credit Agreement (Clear Channel Outdoor Holdings, Inc.), Credit Agreement (Clear Channel Outdoor Holdings, Inc.), Credit Agreement (Clear Channel Outdoor Holdings, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or obsolete, worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariessurplus property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries;
(b) Dispositions of furniture(i) inventory (including Timeshare Inventory) in the ordinary course of business, fixtures and equipment of Timeshare Real Property to a trust, timeshare trustee, timeshare association or other personal property similar structure in the ordinary or normal course of business in exchange for points in an equivalent or commensurate value for the use of such Timeshare Real Property as inventory (including Timeshare Inventory) in the business of the Borrower and its Restricted Subsidiaries and (ii) immaterial assets in the ordinary course of business (including allowing any registrations or any applications for registration of any immaterial IP Rights to AINC lapse or an Affiliate thereof that is leased back under be abandoned in the ERF Programordinary course of business);
(c) Dispositions of inventory in the ordinary course of business;
(d) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and that is promptly purchased or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyproperty (which replacement property is actually promptly purchased);
(d) Dispositions of property to the Borrower or any Restricted Subsidiary; provided that if the transferor of such property is a Loan Party (i) the transferee thereof must be a Loan Party, (ii) to the extent such transaction constitutes an Investment, such transaction is permitted under Section 7.02, or (iii) such Disposition shall consist of the transfer of Equity Interests in or Indebtedness of any Foreign Subsidiary to any other Foreign Subsidiary;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and permitted (other Dispositions, in each case, not otherwise permitted than by reference to this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.057.05(e); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by 7.04 and Section 7.06, 7.06 and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iiif) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,Cash Equivalents;
(ivg) leases and/or leases, subleases, licenses of Hotel Properties and assets related thereto (includingor sublicenses, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(h) transfers of property subject to Casualty Events;
(i) Dispositions of Investments in JV Entities or non-Wholly-Owned Restricted Subsidiaries to the extent required by, or made pursuant to, customary buy/sell arrangements between the parties to such JV Entity or shareholders of such non-Wholly-Owned Restricted Subsidiaries set forth in the shareholder agreements, joint venture agreements, organizational documents or similar binding agreements relating to such JV Entity or non-Wholly-Owned Restricted Subsidiary;
(j) Dispositions of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof;
(k) the unwinding of any Swap Contract pursuant to its terms;
(l) Permitted Sale Leasebacks;
(m) So long as no Event of Default would result therefrom, Dispositions not otherwise permitted pursuant to this Section 7.05 (including any Sale Leasebacks and the sale or issuance of Equity Interests in a Restricted Subsidiary); provided that (i) such Disposition shall be for fair market value as reasonably determined by the Borrower in good faith, (ii) with respect to any Disposition under this clause (m) for a purchase price in excess of the greater of (x) $90,000,000 and (y) 10.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period, as reasonably determined by the Borrower at the time of such Disposition, the Borrower or any of its Restricted Subsidiaries shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents for such Dispositions (provided, however, that for the purposes of this clause (m)(ii), the following shall be deemed to be cash: (A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Borrower or any of its Restricted Subsidiaries and the valid release of the Borrower or such Restricted Subsidiary, by all applicable creditors in writing, from all liability on such Indebtedness or other liability in connection with such Disposition, (B) securities, notes or other obligations received by the Borrower or any of its Restricted Subsidiaries from the transferee that are converted by the Borrower or any of its Restricted Subsidiaries into cash or Cash Equivalents within 180 days following the closing of such Disposition, (C) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Disposition, to the extent that the Borrower and each of the other Restricted Subsidiaries are released from any Guarantee of payment of the Borrower in connection with such Disposition and (D) aggregate non-cash consideration received by the Borrower and its Restricted Subsidiaries for all Dispositions under this clause (m) having an aggregate fair market value (determined as of the closing of the applicable Disposition for which such non-cash consideration is received) not to exceed the greater of (x) $100,000,000 and (y) 10.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period at any time outstanding (net of any non-cash consideration converted into cash and Cash Equivalents received in respect of any such non-cash consideration) and (iii) the Borrower or the applicable Restricted Subsidiary complies with the applicable provisions of Section 2.05;
(n) any Disposition not otherwise permitted pursuant to this Section 7.05 in an amount not to exceed the greater of (x) $45,000,000 and (y) 5.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period;
(o) The Borrower and its Restricted Subsidiaries may surrender or waiver of waive contractual rights and leases and settle or the settlement, release or surrender of waive contractual rights or litigation claims (including in tort) in the ordinary course of business,;
(viip) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings assets (including Equity Interests) acquired in lieu thereof connection with Permitted Acquisitions or other Investments permitted hereunder, which assets are obsolete or not used or useful to the core or principal business of the Borrower and the Restricted Subsidiaries or which Dispositions are made to obtain the approval of any similar proceeding),applicable antitrust authority in connection with a Permitted Acquisition;
(viiiq) any swap of assets in exchange for services or other assets of comparable or greater fair market value useful to the business of the Borrower and its Restricted Subsidiaries as a whole, as determined in good faith by the Borrower;
(r) any sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(s) Dispositions made to comply of Securitization Assets, or participations therein, in connection with any order Qualified Securitization Financing;
(t) any “fee in lieu” or other Disposition of assets to any Governmental Authority that continue in use by the Borrower or any applicable requirement Restricted Subsidiary, so long as the Borrower or any Restricted Subsidiary may obtain title to such assets upon reasonable notice by paying a nominal fee;
(u) [reserved];
(v) the Transactions may be consummated; and
(w) any Disposition by the Borrower or a Restricted Subsidiary of Lawthe Capital Stock of, or indebtedness owned by, a Foreign Subsidiary to any Restricted Subsidiary pursuant to a Reorganization. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than the Borrower or any Subsidiary Guarantor, such Collateral shall be sold free and clear of the Liens created by the Loan Documents and, if requested by the Administrative Agent, upon the certification by the Borrower that such Disposition is permitted by this Agreement, the Administrative Agent or the Collateral Agent, as applicable, shall be authorized to take and shall take any actions deemed appropriate in order to effect the foregoing.
Appears in 3 contracts
Samples: Credit Agreement (Travel & Leisure Co.), Credit Agreement (Wyndham Destinations, Inc.), Credit Agreement (Wyndham Destinations, Inc.)
Dispositions. Make Neither the Lead Borrower nor any of its Restricted Subsidiaries shall, directly or indirectly, make any Disposition or enter into any agreement to make any Disposition, except:
(a) (x) Dispositions of obsolete obsolete, worn out, used or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariessurplus property, whether now owned or hereafter acquired, in the ordinary course of business;
business and Dispositions of property no longer used or useful in the conduct of the business of the Borrowers or any of their Restricted Subsidiaries and (by) Dispositions to landlords of furniture, fixtures and equipment or other personal improvements made to leased real property pursuant to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions customary terms of inventory leases entered into in the ordinary course of business;
(db) Dispositions of equipment or non-core inventory, goods held for sale in the ordinary course of business and immaterial assets in the ordinary course of business (including allowing any issuances, registrations or any applications for registration of any intellectual property to lapse or become abandoned in the ordinary course of business);
(c) Dispositions of property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Lead Borrower or any Restricted Subsidiary; provided that if the transferor of such property is a Loan Party (i) the transferee thereof must be a Loan Party or (ii) if such transaction constitutes an Investment, such Investment must be a Restricted Investment permitted by Section 7.06 or a Permitted Investment;
(e) Dispositions that are permitted by Section 7.04 (other than Section 7.04(g)) or otherwise constitute a Restricted Payment permitted by Section 7.06 or a Permitted Investment (other than a Permitted Investment pursuant to clause (d) or (y) of Equity Interests the definition thereof) and Liens permitted by Section 7.01 (other than Section 7.01(m));
(f) Dispositions of any Property Level Subsidiariescash and Cash Equivalents;
(g) (i) leases, any Hotel Properties subleases, licenses or sublicenses (including the provision of software or the licensing of other intellectual property rights) and other Dispositionstermination thereof, in each case, case in the ordinary course of business and which do not otherwise permitted by this Section 7.05 materially interfere with the business of the Borrowers and the Restricted Subsidiaries taken as a whole and (including, for ii) Dispositions of intellectual property that are not material to the avoidance business of doubt, the Borrowers and the Restricted Subsidiaries;
(h) transfers of property subject to Casualty Events;
(i) Dispositions or discounts without recourse of accounts receivable in excess connection with the compromise or collection thereof in the ordinary course of any monetary limitations as set forth in this Section 7.05)business;
(j) Dispositions of property pursuant to sale-leaseback transactions; provided that the Borrower complies with fair market value of all property so Disposed of after the applicable requirements Closing Date shall not exceed the greater of Section 2.04(b)
(i) with respect to $60,000,000 and 2.50% of Total Assets, as determined at the Net Cash Proceeds time of such Disposition;
(fk) To any sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(l) so long as the extent constituting DispositionsLead Borrower or a Restricted Subsidiary receives at least fair market value therefor (taking into account any Securitization Seller’s Retained Interest), any sale of Securitization Assets in connection with a Permitted Securitization;
(m) Dispositions which may not be prohibited pursuant to section 1136 of the German Civil Code;
(n) Dispositions of property; provided that (i) Investments at the time of such Disposition no Event of Default shall exist or would result from such Disposition (other than, except in the case of an Event of Default under Section 8.01(a), any such Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default exists) and (ii) with respect to any Disposition pursuant to this clause (n) for a purchase price equal to or greater than the greater of $20,000,000 and 0.75% of Total Assets (as determined at the time of such Disposition), the Lead Borrower or any of its Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents (in each case, free and clear of all Liens at the time received, other than nonconsensual Liens permitted by Section 7.037.01 and Liens permitted by Section 7.01(a), Section 7.01(b), clauses (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted of Section 7.01(l), Section 7.01(p), Section 7.01(q), Section 7.01(s), Section 7.01(w), Section 7.01(x), Section 7.01(dd), Section 7.01(ee), Section 7.01(ff) (solely to the extent the Obligations under the Term Loans and Revolving Credit Loans that are secured on a first lien basis shall be secured on a pari passu or senior basis with such Liens), and Section 7.01(gg)); provided, however, that for the purposes of this clause (n)(ii), the following shall be deemed to be cash: (A) any liabilities (as shown on the Lead Borrower’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Lead Borrower or such Restricted Subsidiary, other than liabilities that are by Section 7.01their terms subordinated to the payment in cash of the Obligations, that (x) are assumed by the transferee with respect to the applicable Disposition or (y) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Lead Borrower or its Restricted Subsidiaries) and, in each case, for which the Lead Borrower and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities, notes or other obligations or assets received by the Lead Borrower or the applicable Restricted Subsidiary from such transferee that are converted by the Lead Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition and (C) aggregate non-cash consideration received by the Lead Borrower or the applicable Restricted Subsidiary having an aggregate fair market value (determined as of the closing of the applicable Disposition for which such non-cash consideration is received) not to exceed the greater of $100,000,000 and 4.25% of Total Assets, as determined at the time of such Disposition (net of any non-cash consideration converted into cash and Cash Equivalents);
(i) Any Loan Party may make a Disposition to any other Loan Party and (iio) any Subsidiary swap of assets in exchange for services or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions assets in the ordinary course of business of (A) receivables comparable or greater value or usefulness to the business of the Lead Borrower and its Subsidiaries as a whole, as determined in connection with good faith by the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,management of the Lead Borrower;
(iip) Dispositions, Dispositions of Investments in joint ventures to the extent required by, or made pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, customary buy/sell arrangements between between, the joint venture or parties set forth in joint venture arrangements and similar parties),binding arrangements;
(iiiq) Dispositions the Borrower and the Restricted Subsidiaries may enter into any agreement to make any Disposition so long as consummation of the Disposition contemplated by such agreement is contingent upon either (i) the Required Lenders consenting to such transactions or (ii) the repayment in full of the Obligations (other than (i) obligations arising under Secured Hedge Agreements or Treasury Services Agreements and (ii) indemnities and other contingent liabilities that survive repayment of the Loans);
(r) the unwinding of any Swap Contracts pursuant to its terms;
(s) the dissolution or liquidation of any Subsidiary with no assets; and
(t) sales of non-core assets acquired after the Closing Date in connection with Permitted Acquisitions, Restricted Investments permitted under Section 7.06 (which may include non-core real propertiesother than Section 7.06(d)) currently owned or Permitted Investments, in each case to the extent such sales occur within 180 days of such Permitted Acquisition or Investment; provided that the aggregate amount of such sales shall not exceed 25% of the fair market value of the acquired entity or business;
(u) Dispositions in an acquisition or Investment permitted the aggregate pursuant to this clause (u) not to exceed the greater of $20,000,000 and 0.75% of Total Assets, as determined at the time of such Disposition; provided that any Disposition of any property pursuant to Section 7.03 in an aggregate amount not greater 7.05(j), (n) or (u) shall be for no less than $10,000,000,
(iv) leases and/or licenses the fair market value of Hotel Properties such property at the time of such Disposition. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than a Loan Party, such Collateral shall be sold free and assets related thereto (includingclear of the Liens created by the Loan Documents, without limitation, intellectual property) in and the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights Administrative Agent or the settlementCollateral Agent, release or surrender of contractual rights or litigation claims (including as applicable, shall be authorized to take any actions deemed appropriate in tort) in order to effect the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Lawforegoing.
Appears in 3 contracts
Samples: Credit Agreement (Trinseo PLC), Credit Agreement (Trinseo S.A.), Credit Agreement (Trinseo S.A.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furnitureinventory, fixtures and equipment including inventory constituting New Vehicles or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory Used Vehicles, in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business real property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by any Subsidiary to the Company or to a Subsidiary of the Company that is a Revolving and Floorplan Facility Subsidiary Guarantor;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition7.04;
(f) To Dispositions by the extent constituting DispositionsCompany and its Subsidiaries of property pursuant to sale-leaseback transactions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01provided that the book value of all property so Disposed of shall not exceed $350,000,000 in any fiscal year or $750,000,000 in the aggregate over the term of the Obligations hereunder;
(ig) Any Loan Party may make a Disposition to any other Loan Party Dispositions of retail installment sales contracts and (ii) any Subsidiary related intangible property arising from the sale or Controlled JV Subsidiary (other than a Loan Party) lease of a Loan Party may make a Disposition to any Loan Party vehicles, assets, or any other Subsidiary or Controlled JV Subsidiary services in the ordinary course of any Loan Party; andbusiness;
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:Dispositions pursuant to Permitted Specified Share Exchange Transactions (≤ $350,000,000) and Permitted Specified Share Exchange Transactions (> $350,000,000); and
(i) Dispositions in by the ordinary course Company and its Subsidiaries not otherwise permitted under this Section 7.05; provided that at the time of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof)such Disposition, (Bi) equipment, (C) other current assets no Default shall exist or (D) immaterial assets,
would result from such Disposition and (ii) Dispositionsin the case of a Disposition of a dealership Subsidiary, to such Disposition is otherwise permitted under the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary Revolving and Floorplan Facility Credit Agreement; provided, however, that, other than (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iiii) Dispositions of non-core assets obsolete or worn out fixtures (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant be considered to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses be part of Hotel Properties and assets related thereto (including, without limitation, intellectual propertya Mortgaged Property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business , and (ii) any surrender or waiver leases and subleases of contractual rights or Mortgaged Properties by the settlement, release or surrender of contractual rights or litigation claims (including in tort) Loan Parties in the ordinary course of business,
(vii) Dispositions of property , subject to foreclosurethe consent of the Administrative Agent (and on terms and with Persons acceptable to the Administrative Agent), casualty, eminent domain or condemnation proceedings (including the Loan Parties shall not make any Disposition in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order respect of any Governmental Authority Collateral except for any Disposition permitted above with respect to a Release Property, subject to the satisfaction of the conditions applicable to the Property Substitution or any applicable requirement of LawPrepayment Release with respect to such Release Property in accordance with Section 2.19.
Appears in 2 contracts
Samples: Credit Agreement (Sonic Automotive Inc), Credit Agreement (Sonic Automotive Inc)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete obsolete, surplus or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries (including allowing any registrations or any applications for registration of any immaterial intellectual property to lapse or go abandoned);
(b) Dispositions of furniture, fixtures inventory and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory goods held for sale in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(ed) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting DispositionsDispositions permitted by Section 7.04, (iii) Investments permitted by Section 7.037.02, and (iiiii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (iie) any Subsidiary financing transaction with respect to property built or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party acquired by the Borrower or any other Subsidiary Restricted Subsidiary, including Sale and Lease-Back Transactions and asset securitizations permitted or Controlled JV Subsidiary not prohibited by this Agreement;
(f) Dispositions of any Loan Party; andCash Equivalents;
(g) Dispositions of accounts receivable in connection with the collection or compromise thereof;
(h) Parent licensing or any Subsidiary or Controlled JV Subsidiary sublicensing of Parent may make or effect, as applicable:
(i) Dispositions IP Rights in the ordinary course of business on customary terms;
(i) sales of property (Ai) receivables in connection with the collection, settlement or compromise thereof between Loan Parties (including any discount and/or forgiveness thereofother than Holdings), (Bii) equipmentbetween Restricted Subsidiaries (other than Loan Parties), or (C) other current assets or (D) immaterial assets,
(ii) Dispositions, by Restricted Subsidiaries that are not Loan Parties to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary Loan Parties (includingother than Holdings), but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) each case in the ordinary course of business,;
(vj) Dispositions leases, subleases, licenses or sublicenses of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease property in the ordinary course of business and (ii) any surrender or waiver which do not materially interfere with the business of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,Borrower and its Restricted Subsidiaries;
(viik) Dispositions transfers of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order Casualty Events upon receipt of any Governmental Authority or any applicable requirement the net cash proceeds of Law.such Casualty Event; and
Appears in 2 contracts
Samples: Credit Agreement (At Home Group Inc.), Credit Agreement (At Home Group Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used in the conduct of the business of the Borrower and its Subsidiaries;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by any Subsidiary to the Borrower or to a Subsidiary; provided, that if the transferor of such property is a Guarantor (i) the transferee thereof must either be the Borrower or a Guarantor or (ii) to the extent such transaction constitutes an Investment, such transaction is permitted under Section 7.02;
(e) Dispositions permitted by Sections 7.04 and 7.06 (solely with respect to reissuances of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance treasury stock of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05Holdings); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To Dispositions by the extent constituting DispositionsBorrower and its Subsidiaries of property pursuant to sale-leaseback transactions; provided, that (i) Investments permitted by Section 7.03, the fair market value of all property so Disposed of shall not exceed $25,000,000 from and after the Closing Date and (ii) Restricted Payments permitted by Section 7.06, and the purchase price for such property shall be paid to the Borrower or such Subsidiary for not less than 75% cash consideration;
(iiig) Liens permitted by Section 7.01Dispositions of Cash Equivalents;
(h) Dispositions of accounts receivable in connection with the collection or compromise thereof;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary licensing or Controlled JV Subsidiary (other than a Loan Party) sublicensing of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions IP Rights in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,on customary terms;
(iij) Dispositions, to the extent required pursuant to the terms intercompany sales of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) property in the ordinary course of business,;
(vk) Dispositions leases, subleases, licenses or sublicenses of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease property in the ordinary course of business and (ii) any surrender or waiver which do not materially interfere with the business of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,Holdings and its Subsidiaries;
(viil) Dispositions transfers of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),Casualty Events upon receipt of the Net Cash Proceeds of such Casualty Event; and
(viiim) Dispositions made by the Borrower and its Subsidiaries not otherwise permitted under this Section 7.05; provided, that (i) at the time of such Disposition, no Event of Default shall exist or would result from such Disposition, (ii) the aggregate book value of all property Disposed of in reliance on this clause (m) shall not exceed $50,000,000 and (iii) the purchase price for such property shall be paid to comply with the Borrower or such Subsidiary for not less than 75% cash consideration; provided, however, that (x) any order Disposition of any Governmental Authority property pursuant to this Section 7.05 (except pursuant to Sections 7.05(d), (e), (h) and (j)), shall be for no less than the fair market value of such property at the time of such Disposition and (y) if the net book value of any property subject to any Disposition pursuant to Section 7.05(f) or (m) exceeds $5,000,000, prior to any applicable requirement Disposition of Lawsuch property pursuant to Section 7.05(f) or (m), the Borrower shall deliver to the Administrative Agent a pro forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such transaction, the Loan Parties would be in compliance with the financial covenants set forth in Section 7.11. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 2 contracts
Samples: Credit Agreement (Michael Foods Inc/New), Credit Agreement (Michael Foods Inc/New)
Dispositions. Make The Borrower will not, and will not permit any Disposition Subsidiary to, sell, transfer, lease or enter into otherwise dispose (including pursuant to a merger or a Division) of any agreement to make asset (other than cash and Cash Equivalents), including any DispositionEquity Interest, and the Borrower will not and will not permit any Subsidiary to, issue any Equity Interest, except:
(a) Dispositions (i) sales, transfers, leases and other dispositions of used or surplus equipment or other obsolete or worn out or, in the reasonable judgment of Borrower, unnecessary assets, (ii) the licensing of intellectual property or property determined by the Borrower to no longer be necessary any Subsidiary Guarantor, (iii) the substantially contemporaneous exchange of equipment by any Subsidiary for property of a like kind, to the extent that the equipment received by such Subsidiary in such exchange is of a value equivalent to the business value of the equipment exchanged (provided, that after giving effect to such exchange, the value of the property subject to perfected first priority Liens in favor of the Administrative Agent under the Security Documents is not materially reduced), and (iv) the sale, transfer or operations other disposition of Borrower or its Subsidiaries or JV Subsidiaries, whether now owned or hereafter acquired, property and inventory in the ordinary course of business;
(b) Dispositions of furnituresales, fixtures transfers, leases and equipment other dispositions (i) made by the Borrower to any Subsidiary Guarantor, (ii) made by any Subsidiary to the Borrower or any Subsidiary Guarantor, and (iii) made by any Excluded Subsidiary to any other personal property to AINC or an Affiliate thereof that is leased back under the ERF ProgramExcluded Subsidiary;
(c) Dispositions Liens permitted by Section 7.2, sales, transfers, leases and other dispositions permitted by Section 7.3, Investments permitted by Section 7.4, sale and leaseback transactions permitted by Section 7.6, and Restricted Payments permitted by Section 7.8;
(d) the sale, transfer, lease and other disposition or abandonment of inventory intellectual property that is, in the reasonable judgment of the Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Borrower and the Subsidiary Guarantors taken as a whole;
(e) the sale or discount, in each case without recourse and in the ordinary course of business;
(d) Dispositions , of equipment or non-core assets in the ordinary course of business to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) overdue accounts receivable arising in the ordinary course of business,, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not part of any bulk sale or financing of receivables);
(f) sales of accounts receivable, proceeds thereof and interests therein under any Securitization;
(g) issuances of Equity Interests (i) by the Borrower to its parent, (ii) by any Subsidiary to the Borrower or any Subsidiary Guarantor, (iii) by any Excluded Subsidiary to the Borrower or any Subsidiary and (iv) by GCI Holdings to Ventures Holdco or any other Liberty Subsidiary (provided that such other Liberty Subsidiary pledges such Equity Interests pursuant to the Ventures Holdco Pledge Agreement or another pledge agreement in form and substance substantially similar to the Ventures Holdco Pledge Agreement);
(h) [Reserved];
(i) other issuances of Equity Interests by any Subsidiary to the extent arising out of (i) an Investment by the Borrower or any other Subsidiary permitted by Section 7.4, (ii) a sale, transfer or other disposition by the Borrower or any Subsidiary permitted by Section 7.7(j), or (iii) a Restricted Payment made by the Borrower or any Subsidiary permitted by Section 7.8;
(j) other sales, transfers, leases and other dispositions of assets by the Borrower or any Subsidiary and issuances of Equity Interests by a Subsidiary, if each of the following conditions is met:
(i) immediately before and immediately after giving effect thereto, no Default shall exist or would occur;
(ii) immediately after giving effect thereto, the Borrower shall have satisfied the requirements in Section 6.1(e) with respect thereto, if any;
(iii) the aggregate consideration received by the Borrower and the Subsidiaries in connection therewith shall not be less than the fair market value of the property transferred by the Borrower and the Subsidiaries in connection therewith;
(iv) the terms thereof shall be “arm’s length”; and
(v) Dispositions of cash and/or Cash Equivalents,immediately before and immediately after giving effect thereto, the Secured Leverage Ratio would not be greater than 3.75:1.00;
(vik) sales, transfers, leases and other dispositions of real estate owned by the Borrower or any Subsidiary as of the Closing Date or Towers in a sale and lease‑back transaction to the extent that the incurrence of Indebtedness and Liens with respect to such transaction are permitted by Section 7.1 and Section 7.2; and
(il) any termination sales, transfers, leases and other dispositions of Equity Interests of any lease in Liberty Subsidiary by the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof Borrower or any similar proceeding),
(viii) Dispositions made to comply with any order Subsidiary permitted by the last paragraph of any Governmental Authority or any applicable requirement of LawSection 7.19.
Appears in 2 contracts
Samples: Credit Agreement (Gci Liberty, Inc.), Credit Agreement (Gci, LLC)
Dispositions. Make The Company will not, nor will it cause or permit any Disposition of its Designated Subsidiaries to, convey, sell, lease, transfer or enter into otherwise dispose of, in one transaction or a series of transactions, any agreement to make any Dispositionpart of its business or property, whether now owned or hereafter acquired (including receivables and leasehold interests), except:
(a) Dispositions of obsolete by the Company or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiaries, whether now owned or hereafter acquired, any Designated Subsidiary in the ordinary course of businessits business (including dividends and such Dispositions involving current assets or other invested assets and sales of property or land in connection with the affordable housing business referred in Section 6.01(n));
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC which is obsolete or an Affiliate thereof that is leased back under no longer used or useful in the ERF Programconduct of the business of the Company or such Designated Subsidiary;
(c) Dispositions of inventory in from the ordinary course of businessCompany to a Designated Subsidiary or any other Subsidiary, and Dispositions from a Designated Subsidiary to the Company, another Designated Subsidiary or any other Subsidiary;
(d) Dispositions discounts or forgiveness of equipment or non-core assets accounts receivable in the ordinary course of business to the extent that (i) such property is replaced or in connection with similar replacement property collection or exchanged compromise thereof and for credit against the purchase price of similar replacement property and (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertywhich adequate reserves have been established;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect Potential Divestitures and (ii) Dispositions pursuant to the Net Cash Proceeds of such DispositionRecapitalization Documents and the transactions contemplated thereby (including foreclosures in connection with Liens permitted under Section 6.02(k));
(f) To the extent constituting DispositionsDispositions of tax credits (or properties or ownership interests in properties, (i) Investments permitted by Section 7.03or disposition of loans or interests in loans to properties, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01acquired to generate tax credits);
(ig) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party Dispositions by the Company or any other Designated Subsidiary or Controlled JV Subsidiary of any Loan Partyin connection with securitizations permitted under Section 6.01(e); and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
other Dispositions; provided that (i) Dispositions in the ordinary course aggregate value of business assets sold, leased, transferred or otherwise disposed after the Effective Date pursuant to this clause (h) shall not exceed 15% of the consolidated total assets of the Company and its Subsidiaries (A) receivables in connection with based on the collectionconsolidated balance sheet of the Company for the fiscal quarter ended September 30, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, 2010 and calculated after giving pro forma effect to the extent required pursuant to Potential Divestitures (as if the terms same had been consummated as of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar partiessuch date),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights or at the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order time of any Governmental Authority such Disposition, no Default shall exist or any applicable requirement of Lawwould result therefrom.
Appears in 2 contracts
Samples: 364 Day Credit Agreement (American International Group Inc), Credit Agreement (American International Group Inc)
Dispositions. Make Convey, sell, lease, transfer or otherwise dispose of (including without limitation, pursuant to a Division) (collectively, a “Transfer”), or permit any Disposition of its Subsidiaries to Transfer, all or enter into any agreement to make any Dispositionpart of its business or property, exceptother than:
(a) Dispositions Transfers of obsolete or worn out property or property determined by Borrower to no longer be necessary (i) Inventory in the ordinary course of business and (ii) used, obsolete, damaged, wornout or operations of Borrower surplus Equipment or its Subsidiaries or JV Subsidiaries, whether now owned or hereafter acquired, other property in the ordinary course of business;
(b) Dispositions Transfers to the Borrower or a Subsidiary; provided that any such Transfer involving a Subsidiary (i) shall be made in compliance with Sections 7.7 and 7.8, (ii) shall not, in the case of furnitureany Transfer by the Borrower to a Subsidiary, fixtures involve assets having an aggregate fair market value for all such assets so Transferred in excess of Five Million Dollars ($5,000,000) in the aggregate in any fiscal year and equipment or other personal property (iii) shall not, in the case of any Transfer to AINC or an Affiliate thereof that is leased back under the ERF Programa Subsidiary, involve material Intellectual Property Collateral;
(c) Dispositions Transfers of inventory accounts receivable in connection with the compromise, settlement or collection thereof in the ordinary course of business consistent with past practice and not as part of any accounts receivables financing transaction;
(d) Licenses, leases or subleases (including Intellectual Property and the provision of open source software under an open source license) entered into in the ordinary course of business and on ordinary commercial terms that do not interfere in any material respect with the business of the Borrower and its Subsidiaries;
(e) Licenses or sublicenses of Intellectual Property in the ordinary course of business, to the extent that they are no longer used or useful in the business of the Borrower and its Subsidiaries;
(df) Dispositions Transfers resulting from any casualty or other insured damage to, or any taking under power of equipment eminent domain or nonby condemnation or similar proceeding of, any asset of any of the Borrower or any Subsidiary;
(g) Transfers of assets (including as a result of like-core assets in the ordinary course of business kind exchanges) to the extent that (i) such property is replaced with similar replacement property or assets are exchanged for credit (on a fair market value basis) against the purchase price of similar or replacement property and assets or (ii) such asset is Transferred for fair market ACTIVEUS 188979588v.10 value and the proceeds of such Disposition Transfer are reasonably promptly applied to the purchase price of such similar or replacement propertyassets;
(eh) Dispositions Transfers of Equity Interests of any Property Level SubsidiariesInvestments in joint ventures to the extent required by, any Hotel Properties and other Dispositionsor made pursuant to customary buy/sell arrangements between, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as joint venture parties set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01joint venture arrangements;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business business, (ii) any expiration of any option agreement in respect of real or personal property and (iiiii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,;
(viij) Dispositions the discount, write-off or Transfer of property accounts receivables overdue by more than thirty (30) days;
(k) any other Transfer of assets; provided that (i) any such Transfer shall be for fair market value, (ii) at least 75% of the total consideration for any such Transfer received by the Borrower and its Subsidiaries is in the form of cash or Permitted Investments, (iii) no Default or Event of Default then exists or would result from such Transfer (except if such Transfer is made pursuant to an agreement entered into at a time when no Default or Event of Default exists) and (iv) the aggregate fair market value of assets subject to foreclosure, casualty, eminent domain or condemnation proceedings a Transfer made pursuant to this Section 7.1(k) shall not exceed Five Million Dollars (including $5,000,000) in lieu thereof or any similar proceeding),the aggregate; and
(viiil) Dispositions made Transfers permitted pursuant to comply with any order of any Governmental Authority or any applicable requirement of LawSection 7.3.
Appears in 2 contracts
Samples: Loan and Security Agreement (TechTarget Inc), Loan and Security Agreement (TechTarget Inc)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete obsolete, used, surplus or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries;
(b) Dispositions of furniture, fixtures inventory and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(ed) Dispositions of Equity Interests of property by the Borrower or any Property Level SubsidiariesRestricted Subsidiary to the Borrower or any other Restricted Subsidiary (including any such Disposition effected pursuant to a merger, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05liquidation or dissolution); provided that if the transferor of such property is a Guarantor or the Borrower complies with the applicable requirements of Section 2.04(b)
then (i) with respect the transferee thereof must either be the Borrower or a Guarantor or (ii) to the Net Cash Proceeds of extent such Disposition;
(f) To the extent constituting Dispositionstransaction constitutes an Investment, (i) Investments such transaction is permitted under Section 7.02 and any Indebtedness corresponding to such Investment must be permitted by Section 7.03, ;
(iie) Restricted Payments Dispositions permitted by Section 7.067.02 (other than Section 7.02(e)), Section 7.04 (other than Section 7.04(e)) and Section 7.06 (iiiother than Section 7.06(d)) and Liens permitted by Section 7.01;
(if) Any Loan Party may make a Disposition to any other Loan Party and [Reserved];
(iig) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) Dispositions of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andCash Equivalents;
(h) Parent Dispositions of accounts receivable in connection with the collection or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:compromise thereof;
(i) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Restricted Subsidiaries;
(j) transfers of property subject to Casualty Events upon receipt of the Net Cash Proceeds of such Casualty Event;
(k) Dispositions of property by the Borrower or any Restricted Subsidiary; provided that (i) at the time of such Disposition, (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Default exists), no Default shall exist, (ii) with respect to any Disposition pursuant to this Section 7.05(k) for a purchase price in excess of the greater of (x) $40,000,000 and (y) 2.0% of Total Assets as of the end of the Test Period last ended, the Borrower or any of its Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents (in each case, free and clear of all Liens at the time received other than Liens permitted by Section 7.01) (it being understood that for the purposes of this clause (k)(ii), the following shall be deemed to be cash: (A) any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by such Restricted Subsidiary from such transferee that are converted by such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within one hundred and eighty (180) days following the closing of the applicable Disposition, (C) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is at that time outstanding, not in excess of the greater of $30,000,000 and 1.5% of Total Assets at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (iii) the aggregate value of all property Disposed of pursuant to this Section 7.05(k) since the Closing Date shall not exceed $550,000,000;
(l) Dispositions of Investments in Joint Ventures, to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties set forth in, joint venture arrangements and similar binding arrangements in effect on the Closing Date;
(m) Dispositions in the ordinary course of business consisting of the abandonment of IP Rights which, in the reasonable good faith determination of the Borrower or any Restricted Subsidiary, are uneconomical, negligible, obsolete or otherwise not material in the conduct of its business (A) receivables it being understood and agreed that no Material Intellectual Property may be Disposed of in connection with the collection, settlement or compromise thereof reliance on this clause (including any discount and/or forgiveness thereofm), (B) equipment, (C) other current assets or (D) immaterial assets,);
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (iin) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims (including in tort) in the ordinary course of business,;
(viio) Dispositions of property subject to foreclosureInvestments in Invida JV, casualty, eminent domain or condemnation proceedings (including Samsung JV and NQ Fund as described in lieu thereof or any similar proceedingSchedule 7.02(u),; and
(viiip) Dispositions made to comply with of the Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary; provided that any order Disposition of any Governmental Authority or property pursuant to this Section 7.05 (except pursuant to Section 7.05(d), Section 7.05(e), 7.05(h), 7.05(j) and Section 7.05(m)), shall be for no less than the fair market value of such property at the time of such Disposition. To the extent any applicable requirement Collateral is Disposed of Lawas expressly permitted by this Section 7.05 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent is hereby authorized by the Lenders to take any actions deemed appropriate in order to effect the foregoing.
Appears in 2 contracts
Samples: Credit Agreement (Quintiles Transnational Holdings Inc.), Credit Agreement (Quintiles Transnational Holdings Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Dispositionof assets with a fair market value (as determined in good faith by the Borrower) in excess of $1,000,000 annually, except:
(a) Dispositions of obsolete or obsolete, worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariessurplus property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries;
(b) Dispositions of furnitureinventory, fixtures and equipment goods or other personal assets held for sale in the ordinary course of business and immaterial assets (including allowing any registrations or any applications for registration of any intellectual property to AINC lapse or an Affiliate thereof that is leased back under go abandoned in the ERF Program;
(cordinary course of business) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(ed) Dispositions of Equity Interests of property to the Borrower or any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05)Restricted Subsidiary; provided that if the Borrower complies with the applicable requirements transferor of Section 2.04(b)
such property is a Loan Party, (i) with respect the transferee thereof must be a Loan Party, or (ii) if such transaction constitutes an Investment, such transaction is permitted under Section 7.02;
(e) to the Net Cash Proceeds of such Dispositionextent constituting Dispositions, transactions permitted by Sections 7.01, 7.02, 7.04 and 7.06;
(f) To Dispositions of cash or Cash Equivalents;
(g) leases, subleases, licenses or sublicenses (including the extent constituting Dispositionsprovision of software under an open source license), in each case in the ordinary course of business and which do not materially interfere with the business of the Borrower or any of its Restricted Subsidiaries;
(ih) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01transfers of property subject to Casualty Events;
(i) Any Loan Party may make a Disposition other Dispositions of property; provided that with respect to any other Loan Party Disposition pursuant to this clause (i) for a purchase price in excess of $1,000,000 for any single Disposition or in excess of $5,000,000 with respect to all such Dispositions in any fiscal year, the Borrower or any of its Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents. For purposes of the preceding sentence Cash Equivalents will be deemed to include (A) Designated Non-cash Consideration; provided, that the aggregate fair market value (as determined in good faith by the Borrower) of all Designated Non-cash Consideration after giving effect to such Disposition, in each case measured at the time of receipt, less the amount of cash and Cash Equivalents received by the Borrower and the Restricted Subsidiaries from Dispositions of such Designated Non-cash Consideration within 180 days after receipt thereof, is not more than $5,000,000; and (iiB) any Subsidiary Indebtedness of the Borrower or Controlled JV a Restricted Subsidiary (other than Indebtedness subordinated to the Obligations or Indebtedness to the Borrower or a Loan PartyRestricted Subsidiary) that is assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andits Restricted Subsidiaries shall have been validly released by all applicable creditors in writing;
(hj) Parent Dispositions or any Subsidiary discounts without recourse of accounts receivable in connection with the compromise or Controlled JV Subsidiary collection thereof in the ordinary course of Parent may make or effect, as applicable:business;
(ik) Dispositions any swap of assets in exchange for services or other assets in the ordinary course of business of (A) receivables comparable or greater value or usefulness to the business of the Borrower and its Subsidiaries as a whole, as determined in connection with good faith by the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,management of the Borrower;
(iil) Dispositionsany issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(m) the unwinding or settling of any Swap Contract;
(n) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, customary buy/sell arrangements between between, the joint venture or similar parties),investors set forth in joint venture arrangements;
(iiio) the lapse or abandonment in the ordinary course of business of any registrations or applications for registration of any immaterial IP Rights that is, in the reasonable good faith judgment of Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole; provided that any Disposition of any property pursuant to this Section 7.05 (except pursuant to Sections 7.05(e), (h), (m) and (o) and except for Dispositions from a Loan Party to any other Loan Party) shall be for no less than the fair market value (as determined in good faith by the Borrower) of such property at the time of such Disposition. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent or the Collateral Agent, as applicable, shall be authorized to take any actions deemed appropriate in order to effect the foregoing;
(p) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition connection with Permitted Acquisitions or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) other Investments; provided that (i) any termination the aggregate amount of any lease such Dispositions shall not exceed 25% of the fair market value (as determined in good faith by the ordinary course Borrower) of the acquired entity or business and (ii) any surrender or waiver of contractual rights each such sale is in an arm’s-length transaction and the Borrower or the settlement, release or surrender of contractual rights or litigation claims respective Restricted Subsidiary receives at least fair market value (including as determined in tort) in good faith by the ordinary course of business,Borrower);
(viiq) Dispositions of property subject pursuant to foreclosure, casualty, eminent domain or condemnation proceedings sale leaseback transactions so long as the fair market value of such property (including in lieu thereof or any similar proceeding),the good faith determination of the Borrower) does not exceed $1,000,000;
(viiir) [reserved];
(s) Dispositions made in connection and concurrently with a Permitted SPAC Transaction and solely to comply with the extent contemplated by the Permitted SPAC Transaction Documents; and
(t) other Dispositions in an amount not to exceed $5,000,000. Notwithstanding the foregoing, (a) in no event shall the Borrower make, or permit any order of other Loan Party to make, any Governmental Authority Disposition to any Restricted Subsidiary that is not a Loan Party or any applicable requirement Unrestricted Subsidiary consisting of Lawintellectual property (or exclusive rights thereto) that is used in business of the Loan Parties (as determined by the Borrower in good faith) and (b) in no event shall the Borrower permit any Restricted Subsidiary that is not a Loan Party to make any Disposition to any Unrestricted Subsidiary consisting of intellectual property (or exclusive rights thereto) that is used in the business of the Borrower and the Restricted Subsidiaries (as determined by the Borrower in good faith).
Appears in 2 contracts
Samples: Credit Agreement (Nebula Parent Corp.), Credit Agreement (Nebula Parent Corp.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesassets, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
inventory (cincluding Hydrocarbons sold after severance) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets real property or other asset (other than (x) Oil and Gas Properties or (y) Investments in the ordinary course of business Subsidiaries) to the extent that (i) such property is replaced with similar replacement equipment, property or other asset is exchanged for credit against the purchase price of similar replacement equipment, property and or other asset or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement equipment, property, or other asset;
(d) Dispositions of property or assets by any Subsidiary to the Borrower or to a wholly-owned Subsidiary or by the Borrower to any wholly-owned Subsidiary; provided that if the transferor of such property or assets is a Guarantor, the transferee thereof must either be the Borrower or a Guarantor;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 7.04(a), (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05b) or (d); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To a Disposition for fair value of Oil and Gas Properties in the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01Piceance Basin;
(ig) Any Loan Party may make a Disposition Dispositions (including Casualty Events) of Oil and Gas Properties which are sold or otherwise transferred for fair consideration to any other Loan Party Persons who are not Affiliates of Borrower and (ii2) farmouts of undeveloped acreage and assignments in connection with such farmouts or the abandonment, farm-out, the exchange, provided that no Event of Default exists at the time of any Subsidiary or Controlled JV Subsidiary such sale (other than a Loan Party) Defaults that will be cured upon the application of a Loan Party may make a Disposition to any Loan Party the proceeds of such sale or any other Subsidiary or Controlled JV Subsidiary of any Loan Partytransfer); and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned interest in Oil and Gas Properties in respect of Immaterial Title Deficiencies in order to discharge such Immaterial Title Deficiencies or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Lawobligation giving rise thereto.
Appears in 2 contracts
Samples: Bridge Loan Agreement (Sandridge Energy Inc), Bridge Loan Agreement (Sandridge Energy Inc)
Dispositions. Make any Disposition (other than as part of or enter into any agreement to make any Dispositionin connection with the Transaction), except:
(a) Dispositions of obsolete obsolete, damaged, worn out, used or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariessurplus property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Parent Borrower or any of its Restricted Subsidiaries;
(b) Dispositions of furniture, fixtures inventory and equipment or other personal property to AINC or an Affiliate thereof that is leased back under goods held for sale in the ERF Program;
ordinary course of business and immaterial assets (cconsidered in the aggregate) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Parent Borrower or any Restricted Subsidiary; provided that if the transferor of such property is a Loan Party (i) the transferee thereof must be a Loan Party or (ii) if such transaction constitutes an Investment, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xviii)) or a Permitted Investment;
(e) Dispositions of Equity Interests of any Property Level Subsidiariesthat otherwise constitute a Permitted Investment, any Hotel Properties and other Dispositions, in each case, not otherwise are permitted by this Section 7.05 7.04 (including, for the avoidance other than Section 7.04(h)) or otherwise constitute a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xviii)) and Liens permitted by Section 7.01 (other than Section 7.01(m)(ii));
(f) Dispositions of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05)property pursuant to sale-leaseback transactions; provided that to the Borrower complies extent the aggregate Net Cash Proceeds from all such Dispositions since the Closing Date exceeds $20,000,000, such excess shall be reinvested in accordance with the applicable requirements definition of “Net Cash Proceeds” or otherwise applied to prepay Loans in accordance with Section 2.04(b2.05(b)(ii);
(g) Dispositions of Cash Equivalents;
(i) leases, subleases, licenses or sublicenses, in each case in the ordinary course of business and which do not materially interfere with respect the business of the Parent Borrower and the Restricted Subsidiaries, taken as a whole; and (ii) Dispositions of intellectual property that do not materially interfere with the business of the Parent Borrower or any of its Restricted Subsidiaries;
(i) transfers of property subject to Casualty Events upon receipt of the Net Cash Proceeds of such DispositionCasualty Event;
(fj) To the extent constituting Dispositions, Dispositions of property; provided that (i) Investments permitted by Section 7.03at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Default has occurred and is continuing), no Default shall have occurred and is continuing or would result from such Disposition; and (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $15,000,000, the Parent Borrower or any of its Restricted Payments permitted by Section 7.06Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents (in each case, free and (iii) clear of all Liens at the time received, other than nonconsensual Liens permitted by Section 7.017.01 and Liens permitted by Xxxxxxxx 0.00(x), (x), (x), (x), (x), (x)(x), (x)(xx), (x), (xx) (only to the extent the Obligations are secured by such cash and Cash Equivalents to the same extent), (cc) (only to the extent the Obligations are secured by such cash and Cash Equivalents to the same extent) and (gg) (only to the extent the Obligations are secured by such cash and Cash Equivalents to the same extent)); provided, however, that for the purposes of this clause (ii), the following shall be deemed to be cash: (A) any liabilities (as shown on the Parent Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Parent Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that (i) are assumed by the transferee of any such assets or (ii) that are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Parent Borrower or its Restricted Subsidiaries) and, in each case, for which the Parent Borrower and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities, notes or other obligations or assets received by the Parent Borrower or the applicable Restricted Subsidiary from such transferee that are converted by the Parent Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within one hundred and eighty (180) days following the closing of the applicable Disposition, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to the Parent Borrower or its Restricted Subsidiaries), to the extent that the Parent Borrower and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition and (D) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (D) that is at that time outstanding, not in excess of the greater of $50,000,000 and 2.5% of Total Assets at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value;
(ik) Any Loan Party may make a Disposition Dispositions of Investments in joint ventures to any other Loan Party the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(iil) Dispositions or discounts of accounts receivable in connection with the collection or compromise thereof;
(m) any Subsidiary issuance or Controlled JV Subsidiary sale of Equity Interests in, or sale of Indebtedness or other securities of, an Unrestricted Subsidiary;
(other than a Loan Partyn) to the extent allowable under Section 1031 of a Loan Party may make a Disposition to the Code (or comparable or successor provision), any Loan Party exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by the Parent Borrower or any other Subsidiary or Controlled JV Subsidiary of its Restricted Subsidiaries that is not in contravention of Section 7.07;
(o) the unwinding of any Loan Party; andSwap Contract;
(hp) Parent or any Subsidiary or Controlled JV Subsidiary Disposition of Parent may make or effect, as applicable:Securitization Assets to a Securitization Subsidiary;
(iq) Dispositions the lapse or abandonment in the ordinary course of business of (A) receivables in connection with the collection, settlement any registrations or compromise thereof (including applications for registration of any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,IP Rights; and
(iir) Dispositions, to the extent required pursuant to the terms any swap of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater other than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual propertyCash Equivalents) in exchange for assets of the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease same type in the ordinary course of business of comparable or greater value or usefulness to the business of the Parent Borrower and its Subsidiaries as a whole, as determined in good faith by the management of the Parent Borrower; provided that any Disposition of any property pursuant to this Section 7.05 (except pursuant to Sections 7.05(e), (i), (k), (m), (o), (p) and (iiq) and except for Dispositions from the Parent Borrower or a Restricted Subsidiary to the Parent Borrower or a Restricted Subsidiary), shall be for no less than the fair market value of such property at the time of such Disposition. To the extent any surrender or waiver Collateral is Disposed of contractual rights or as expressly permitted by this Section 7.05 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the settlementLiens created by the Loan Documents, release or surrender of contractual rights or litigation claims (including and, if requested by the Administrative Agent, upon the certification by the Parent Borrower that such Disposition is permitted by this Agreement, the Administrative Agent shall be authorized to take any actions deemed appropriate in tort) in order to effect the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Lawforegoing.
Appears in 2 contracts
Samples: Credit Agreement (Par Pharmacuetical, Inc.), Credit Agreement (Par Pharmacuetical, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete Inventory and, so long as no Event of Default exists or worn out property or property determined by Borrower to no longer be necessary is created thereby, Cash Equivalents, each in the business or operations Ordinary Course of Borrower or its Subsidiaries or JV Subsidiaries, whether now owned or hereafter acquired, in the ordinary course of businessBusiness;
(b) Dispositions in the Ordinary Course of furnitureBusiness of Equipment or fixed assets that are obsolete or worn out, fixtures so long as (i) no Event of Default has occurred and equipment is continuing at the time of such Disposition, (ii) (A) the aggregate Fair Market Value or other personal property to AINC a book value, whichever is more, of such Equipment and fixed assets does not exceed $1,500,000 in any twelve-month period or an Affiliate (B) such Equipment or fixed assets have been fully depreciated, and (iii) all proceeds thereof that is leased back under the ERF Programare applied in accordance with Section 2.06(c);
(c) Dispositions of inventory in the ordinary course of businessthat constitute (i) an Investments permitted under Section 8.03, (ii) a Lien permitted under Section 8.02, (iii) a merger, amalgamation, dissolution, consolidation or liquidation permitted under Section 8.04(a), or (iv) a Restricted Payment permitted under Section 8.06;
(d) Dispositions that result from a casualty or condemnation in respect of equipment or non-core assets in the ordinary course of business to the extent that (i) such property or assets and is replaced not otherwise an Event of Default, so long as all proceeds thereof are applied in accordance with similar replacement property or exchanged for credit against the purchase price of similar replacement property and (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertySection 2.06(c);
(e) Dispositions the licensing, on a non-exclusive basis, of Equity Interests of any Property Level Subsidiariespatents, any Hotel Properties trademarks, copyrights, and other Dispositions, Intellectual Property rights in each case, not otherwise permitted by this Section 7.05 the Ordinary Course of Business,
(including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
f) (i) the lapse of immaterial registered patents, trademarks, copyrights and other Intellectual Property to the extent maintaining such registered Intellectual Property is not economically desirable in the conduct of its business or (ii) the abandonment of patents, trademarks, copyrights, or other intellectual property rights in the Ordinary Course of Business so long as in each case under clauses (i) and (ii), such lapse or abandonment is not materially adverse to the interests of the Secured Parties;
(g) the leasing or subleasing of assets (other than sale and leaseback transactions prohibited under Section 8.15) in the Ordinary Course of Business;
(h) Dispositions that consist of the sale or discount in the Ordinary Course of Business of overdue accounts receivable that are neither Eligible Accounts nor Eligible Time and Material Accounts in connection with respect to the compromise or collection thereof, provided that the Net Cash Proceeds of from such Disposition;
(f) To Disposition shall be deposited in the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01Concentration Account;
(i) Any Dispositions among the Loan Party may make a Disposition to any other Loan Party and (ii) Parties or by any Subsidiary or Controlled JV Subsidiary (other than to a Loan Party;
(j) of Dispositions by any Subsidiary which is not a Loan Party may make to another Subsidiary that is not a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(hk) Parent other Dispositions of assets (other than Borrowing Base Assets or any Subsidiary contracts or Controlled JV Subsidiary of Parent may make or effectother general intangibles related thereto), so long as applicable:
(i) Dispositions in no Event of Default has occurred and is continuing at the ordinary course time of business of (A) receivables in connection with the collectionsuch Disposition, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to at least 75% of the extent required pursuant to the terms of any agreement consideration payable with respect to a JV Subsidiary (includingsuch Disposition shall be in the form of cash paid at the time of such Disposition, but not limited to, buy/sell arrangements between joint venture or similar parties),
and (iii) Dispositions the Fair Market Value of non-core all such assets (which may include non-core real properties) currently owned Disposed of, whether individually or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount a series of related transactions, does not greater than exceed $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) 1,000,000 in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) aggregate in any termination of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Lawfiscal year.
Appears in 2 contracts
Samples: Credit Agreement (Matrix Service Co), Credit Agreement (Matrix Service Co)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or obsolete, worn out or damaged property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesequipment, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furniture, fixtures inventory and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory goods held for sale in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property; provided that to the extent the property being transferred constitutes Current Asset Collateral, such replacement property shall constitute Current Asset Collateral;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor of such property is a Loan Party (i) the transferee thereof must be a Loan Party, (ii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 9.2 (other than Section 9.2(e)) or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair value (as determined by the Person making such Disposition in good faith) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 9.2 (other than Section 9.2(e) or (h)); provided further that no Disposition of Current Asset Collateral (other than cash and Cash Equivalents) shall be permitted pursuant to this clause (d) unless the Borrower shall have (A) in respect of any Disposition pursuant to this clause (d) of property with an aggregate Fair Market Value in excess of $2,000,000, delivered to the Administrative Agent written notice of such Disposition in reasonable detail and (B) if reasonably requested by the Administrative Agent or the FILO Agent, delivered to the Administrative Agent and the FILO Agent an updated Borrowing Base Certificate; provided further that Dispositions of Intellectual Property pursuant to this Section 9.5(d) shall comply with the terms of Section 9.5(j)(iv);
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 9.2 (includingother than Section 9.2(e)), for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.059.4 (other than Section 9.4(g); provided that the Borrower complies with the applicable requirements of ) and Section 2.04(b9.6 (other than Section 9.6(d)
(i) with respect to the Net Cash Proceeds of such Dispositionand Liens permitted by Section 9.1(other than Section 9.1(m)(ii));
(f) To Dispositions of property (other than Current Assets Collateral) pursuant to Permitted Sale-Leaseback Transactions;
(g) any issuance or sale of Equity Interests in, or issuance or sale of Indebtedness or other securities of, an Unrestricted Subsidiary;
(h) leases, subleases, licenses or sublicenses (including the extent constituting Dispositionsprovision of software under an open source license), (i) Investments permitted by Section 7.03in each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01taken as a whole;
(i) Any Loan Party may make Dispositions of property other than Current Assets Collateral subject to Recovery Events;
(j) Dispositions of property (other than Current Asset Collateral and other than in connection with any sale and leaseback transaction) not otherwise permitted under this Section 9.5; provided that: (i) at the time of such Disposition (other than any such Disposition made pursuant to a Disposition legally binding commitment entered into at a time when no Default would exist immediately after giving effect thereto), no Default would exist immediately after giving effect to any other Loan Party and such Disposition; (ii) the Borrower or any Subsidiary of the Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Controlled JV Subsidiary Cash Equivalents (in each case, free and clear of all Liens at the time received, other than Liens permitted by Section 9.1); provided, however, that for the purposes of this clause (ii), (A) any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the payment in cash of the Obligations (other than contingent indemnification and reimbursement obligations as to which no claim has been asserted by the Person entitled thereto), that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by such Restricted Subsidiary from such transferee that are converted by such Restricted Subsidiary into cash (to the extent of the cash received) within one hundred eighty (180) days following the closing of the applicable Disposition and (C) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate Fair Market Value as determined by the Borrower in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is at that time outstanding, not in excess of the greater of $25,000,000 and 1.5% of Total Assets (measured at the time such Designated Non-Cash Consideration is received), with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash; (iii) [reserved]; and (iv) in the event of a Loan PartyDisposition of Intellectual Property used or useful in connection with the Current Asset Collateral, the purchaser, assignee or other transferee thereof agrees in writing to be bound by a non-exclusive royalty-free worldwide license of such Intellectual Property in favor of the Collateral Agent for use in connection with the exercise of the rights and remedies of the Secured Parties following the occurrence and during the continuation of an Event of Default, which license shall be in form and substance reasonably satisfactory to the Collateral Agent, and provided further that in the case of a Disposition of Intellectual Property licensed by the Borrower or one of its Restricted Subsidiaries from a third party, the transferee thereof shall be required to provide such a license only to the extent to which the applicable license gives it a right to do so;
(k) Dispositions of Investments in Joint Ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the Joint Venture parties set forth in Joint Venture arrangements and similar binding arrangements;
(l) bulk sales or other Dispositions of the Inventory of a Loan Party may make a not in the ordinary course of business in connection with Store closings, at arm’s length, provided that such Store closures and related Inventory Dispositions shall not exceed in any transaction or series of related transactions, 10.0% of the number of the Loan Parties’ Stores as of the date of such bulk sale or other Disposition, unless the Borrower shall have delivered to the Administrative Agent and the FILO Agent an updated Borrowing Base Certificate; provided further that when such Store closures (net of new Store openings) first exceed 15.0% in the aggregate during any twelve-month period of the number of the Loan Parties’ Stores in existence at the beginning of such period, the Borrower (x) shall have delivered immediately prior to such event written notice to the Administrative Agent of such Disposition in reasonable detail and (y) if requested by the Administrative Agent, shall permit an Updated Inventory Appraisal in form and detail and from an appraiser reasonably satisfactory to any Loan Party or any other Subsidiary or Controlled JV Subsidiary the Administrative Agent; provided further that all Net Cash Proceeds received in connection therewith are applied to the Obligations if then required in accordance with Section 2.9 hereof;
(m) the unwinding of any Loan Party; andSwap Contract;
(hn) Parent the lapse or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions abandonment in the ordinary course of business of any registrations or applications for registration of any IP Rights that are immaterial to the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(Ao) receivables to the extent allowable under Section 1031 of the Code (or comparable or successor provision) of comparable or greater market value or usefulness to the business of the Borrower and its Restricted Subsidiaries, taken as a whole, any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by the Borrower or any of the Restricted Subsidiaries that is not in contravention of Section 9.7;
(p) Dispositions of accounts receivable in connection with the collection, settlement collection or compromise thereof other than in connection with a financing transaction; provided that no disposition of Eligible Credit Card Receivables shall be permitted pursuant to this clause (including any discount and/or forgiveness thereof)p) unless the Borrower shall have (i) in the case of a Disposition of Eligible Credit Card Receivables in an amount in excess of $100,000, (B) equipment, (C) other current assets or (D) immaterial assets,
delivered to the Administrative Agent written notice of such Disposition in reasonable detail and (ii) Dispositionsif reasonably requested by the Administrative Agent or the FILO Agent, delivered to the extent required pursuant to Administrative Agent and the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),FILO Agent an updated Borrowing Base Certificate;
(iiiq) sales or other Dispositions by the Borrower or any Restricted Subsidiary of non-core assets (which may include non-core real properties) currently owned in connection with the closing or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses sale of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease a Store in the ordinary course of business of the Borrower and its Subsidiaries which consist of leasehold interests in the premises of such Store, the equipment and fixtures located at such premises and the books and records relating directly to the operations of such Store; provided that as to each and all such sales and closings, (A) no Event of Default shall result therefrom and (iiB) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including each such sale shall be on commercially reasonable prices and terms in tort) in the ordinary course of business,a bona fide arm’s length transaction; and
(viir) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or cash and Cash Equivalents; provided that any similar proceeding),
(viii) Dispositions made to comply with any order Disposition of any Governmental Authority property pursuant to this Section 9.5 (except pursuant to Sections 9.5(a), (d)(i), (e), (i), (k), (m), (n), (o) and (p) and except for Dispositions from the Borrower or a Restricted Subsidiary that is a Loan Party to the Borrower or a Restricted Subsidiary that is a Loan Party), shall be for no less than the Fair Market Value of such property at the time of such Disposition as determined by the Borrower in good faith. To the extent any applicable requirement Collateral is Disposed of Lawas expressly permitted by this Section 9.5 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and, if requested by the Administrative Agent, upon the certification by a Responsible Officer of the Borrower that such Disposition is permitted by this Agreement, the Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 2 contracts
Samples: Abl Credit Agreement (99 Cents Only Stores LLC), Abl Credit Agreement (99 Cents Only Stores LLC)
Dispositions. Make any Disposition (other than as part of or enter into any agreement to make any Disposition, in connection with the Transactions) except:
(a) Dispositions of obsolete obsolete, damaged, worn out, used or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariessurplus property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries;
(b) Dispositions of furniture, fixtures inventory and equipment or other personal property to AINC or an Affiliate thereof that is leased back under goods held for sale in the ERF Program;
ordinary course of business and immaterial assets (cconsidered in the aggregate) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and constituting Permitted Investments (other Dispositions, in each case, not than pursuant to clause (d) thereof) or otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, Dispositions permitted by Section 7.04 (other than clause (g) thereof) and (iii) Liens permitted by Section 7.01;
(if) Any Loan Party may make a Disposition Dispositions of property pursuant to any other Loan Party Sale and Lease-Back Transactions;
(iig) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) Dispositions of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andcash, Cash Equivalents and Investment Grade Securities;
(h) Parent leases, subleases, service agreements, product sales, licenses or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof sublicenses (including any discount and/or forgiveness thereofagreements involving the provision of software in copy or as a service, and related data and services), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease each case in the ordinary course of business and (ii) any surrender or waiver which do not materially interfere with the business of contractual rights or the settlementBorrower and the Restricted Subsidiaries, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,taken as a whole;
(viii) Dispositions transfers of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Law.Casualty Events;
Appears in 2 contracts
Samples: Incremental Amendment (American Tire Distributors Holdings, Inc.), Incremental Amendment (ATD Corp)
Dispositions. Make Neither the Lead Borrower nor any Disposition of the Restricted Subsidiaries shall, directly or enter into any agreement to indirectly, make any Disposition, except:
(a) (i) Dispositions of obsolete or obsolete, non-core, worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariessurplus property, whether now owned or hereafter acquired, and Dispositions of property no longer used or useful or economically practical to maintain in the conduct of the business of the Lead Borrower or any of its Restricted Subsidiaries, (ii) Dispositions of property no longer used or useful in the conduct of the business of the Lead Borrower and its Restricted Subsidiaries outside the ordinary course of businessbusiness (and for consideration complying with the requirements applicable to Dispositions pursuant to clause (j) below) in an aggregate amount not to exceed $25,000,000 and (iii) write-off or write-down of any unrecoupable loans or advances;
(b) Dispositions of furnitureinventory or goods held for sale and immaterial assets (including allowing any registrations or any applications for registration of any immaterial IP Rights to lapse or go abandoned), fixtures and equipment in each case, in the ordinary course of business or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Programconsistent with past practice;
(c) Dispositions of inventory in the ordinary course of business;
(d) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Lead Borrower or any Restricted Subsidiary; provided that if the transferor of such property is a Loan Party, (i) the transferee thereof must be a Loan Party or (ii) if such transaction constitutes an Investment, such transaction is permitted under Section 7.02;
(e) to the extent constituting Dispositions, transactions permitted by Sections 7.01, 7.02 (other than Section 7.02(e)), 7.04 (other than Section 7.04(f)) and 7.06;
(f) Dispositions contemplated as of the Closing Date and listed on Schedule 7.05(f);
(g) Dispositions of Cash Equivalents;
(i) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business or consistent with past practice and which do not materially interfere with the business of the Lead Borrower or any of the Restricted Subsidiaries and (ii) Dispositions of IP Rights that do not materially interfere with the business of the Lead Borrower or any of the Restricted Subsidiaries;
(i) transfers of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(j) Dispositions of property or assets or issuance or sale of Equity Interests of any Property Level SubsidiariesRestricted Subsidiary; provided that (i) at the time of such Disposition, no Event of Default under Section 8.01(a) or 8.01(f) with respect to any Hotel Properties Borrower shall exist or would result from such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no such Event of Default exists) and other Dispositions(ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $25,000,000, the Lead Borrower or any of the Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents (in each case, not otherwise free and clear of all Liens at the time received, other than nonconsensual Liens permitted by this Section 7.05 7.01 and Liens permitted by Sections 7.01(a), (includingf), (k), (p), (q), (r)(i), (r)(ii), (dd) (only to the extent the Obligations are secured by such cash and Cash Equivalents) and (ee) (only to the extent the Obligations are secured by such cash and Cash Equivalents)); provided, however, that for the avoidance purposes of doubtthis clause (j)(ii), Dispositions the following shall be deemed to be cash:
(A) the greater of the principal amount and the carrying value any liabilities (as shown on the Lead Borrower’s (or the Restricted Subsidiaries’, as applicable) most recent balance sheet provided hereunder or in excess the footnotes thereto or, if incurred or increased subsequent to the date of such balance sheet, such liabilities that would have been shown on the Lead Borrower’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereto if such incurrence or increase had taken place on or prior to the date of such balance sheet, as determined by the Lead Borrower) of the Lead Borrower or such Restricted Subsidiary, other than liabilities (other than intercompany liabilities owing to a Restricted Subsidiary being Disposed of) that are by their terms subordinated to the payment in cash of the Obligations, (i) assumed by the transferee of any monetary limitations such assets (or a third party in connection with such transfer) pursuant to a written agreement which releases or indemnifies the Lead Borrower or such Restricted Subsidiary from such liabilities or (ii) otherwise cancelled or terminated in connection with the transaction,
(B) any securities, notes or other obligations or assets received by the Lead Borrower or the applicable Restricted Subsidiary from such transferee that are converted by, or reasonably expected to be converted by, the Lead Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received or expected to be received) or by their terms are required to be satisfied for cash or Cash Equivalents within 180 days following the closing of the applicable Disposition, and
(C) aggregate non-cash consideration received by the Lead Borrower or the applicable Restricted Subsidiary having an aggregate fair market value (determined as set forth of the closing of the applicable Disposition for which such non-cash consideration is received) not to exceed the greater of $50,000,000 and 35% of LTM Consolidated EBITDA at any time (net of any non-cash consideration converted into cash and Cash Equivalents);
(k) the sale, assignment, licensing, sub-licensing or other Disposition of IP Rights or other general intangibles pursuant to any Intercompany License Agreement;
(l) Dispositions or discounts without recourse of accounts receivable, or participations therein, or Securitization Assets or related assets, or any disposition of the Equity Interests in this Section 7.05)a Subsidiary, all or substantially all of the assets of which are Securitization Assets, in each case in connection with any Qualified Securitization Facility or the disposition of an account receivable in connection with the collection or compromise thereof in the ordinary course of business;
(m) Dispositions of property pursuant to any Sale and Lease-Back Transaction or lease-leaseback transactions; provided that the Borrower complies with fair market value of all property so Disposed of after the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such DispositionClosing Date shall not exceed $60,000,000 at any time;
(fn) To any swap of assets in exchange for services or other assets of comparable or greater value or usefulness to the extent constituting Dispositionsbusiness of the Lead Borrower and its Subsidiaries as a whole, (i) Investments permitted as determined in good faith by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01the management of the Lead Borrower;
(i) Any Loan Party may make a Disposition to any other Loan Party and (iio) any Subsidiary issuance or Controlled JV sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary (other than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents) (or a Loan PartyRestricted Subsidiary which owns an Unrestricted Subsidiary so long as such Restricted Subsidiary owns no assets other than the Equity Interests of such an Unrestricted Subsidiary);
(p) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary the unwinding of any Loan Party; andSwap Contract pursuant to its terms;
(hq) Parent Dispositions of Investments in joint ventures to the extent required by, or any Subsidiary or Controlled JV Subsidiary of Parent may make or effectmade pursuant to customary buy/sell arrangements between, as applicable:the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(ir) Dispositions the lapse or abandonment in the ordinary course of business of any registrations or applications for registration of any immaterial IP Rights;
(As) receivables Permitted Intercompany Activities;
(t) Dispositions of assets (i) acquired pursuant to or in order to effectuate a Permitted Acquisition which assets are not used or useful to the core or principal business of the Lead Borrower and the Restricted Subsidiaries or (ii) that are made in connection with the collection, settlement approval of any applicable antitrust authority or compromise thereof (including otherwise necessary or advisable in the good faith determination of the Lead Borrower to consummate any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,acquisition;
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (iiu) any surrender or waiver of contractual contract rights or the settlement, release or surrender of contractual contract rights or other litigation claims (including claims, in tort) each case, in the ordinary course of business,;
(viiv) the issuance of directors’ qualifying shares and shares issued to foreign nationals as required by applicable law;
(w) Dispositions to effect the formation of any Subsidiary that is a Delaware Divided LLC, provided that upon formation of such Delaware Divided LLC, the Lead Borrower has complied with Section 6.11, to the extent applicable;
(x) other Dispositions after the Closing Date in an aggregate amount not to exceed the greater of (i) $25,000,000 and (ii) 15% of LTM Consolidated EBITDA; and
(y) any sale of property subject or assets, if the acquisition of such property or assets was financed with Excluded Contributions and the proceeds of such sale are used to foreclosure, casualty, eminent domain make Investments or condemnation proceedings (including in lieu thereof Restricted Payments pursuant to Sections 7.02(y) or 7.06(p); provided that any similar proceeding),
(viii) Dispositions made to comply with any order Disposition of any Governmental Authority property pursuant to this Section 7.05 (except pursuant to Sections 7.05(e), (i), (k), (p), (r) and (s) and except for Dispositions from a Loan Party to any other Loan Party) shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Lead Borrower in good faith. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent or the Collateral Agent, as applicable, shall take any applicable requirement of Lawactions deemed appropriate in order to effect the foregoing.
Appears in 2 contracts
Samples: Credit Agreement (Bumble Inc.), Credit Agreement (Bumble Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions in the ordinary course of business (including Dispositions of obsolete or worn out or surplus property or property determined by Borrower to no longer be necessary required or useful in the business or operations of the Borrower or any of its Subsidiaries Subsidiaries);
(b) Dispositions of assets and businesses specified on Schedule 6.08 or JV Subsidiaries, whether now owned expected to be sold or hereafter acquired, terminated under the Business Plan most recently delivered to the Facility Agent prior to the Signing Date;
(c) Dispositions of Investments in Cash Equivalents;
(d) Dispositions of assets which individually or in the aggregate are less than 15% of the Consolidated Tangible Net Assets as of the Effective Date and for which no less than 80% of the proceeds received therefor are in cash or Cash Equivalents;
(e) Dispositions constituting a Lien permitted pursuant to Section 7.01;
(f) the sale or issuance of any Operating Company Subsidiary’s Equity Interests to the Borrower;
(g) Dispositions of assets in connection with any transaction permitted by Section 7.05;
(h) assignments and licenses of intellectual property or other intangibles of the Operating Company Group Members in the ordinary course of business;
(bi) Dispositions any Disposition of furnitureany asset or interest therein in exchange for utility plant, fixtures and equipment or other personal property to AINC utility assets (other than notes or an Affiliate thereof that is leased back under the ERF Program;
(cother obligations) Dispositions of inventory in the ordinary course of business;
(d) Dispositions of equipment or non-core assets in the ordinary course of business each case equal to the extent fair market value (as determined in good faith by the Borrower) of such asset or interest therein; provided, however, that the fair market value of any such assets or interests Disposed of under this paragraph (i) such property is replaced with similar replacement property or exchanged for credit against shall not exceed $5,000,000 in the purchase price of similar replacement property and (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;aggregate in any fiscal year; and
(ej) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each caseone transaction or a series of related transactions, resulting in Net Cash Proceeds not otherwise permitted by this Section 7.05 (including, for exceeding $10,000,000 in the avoidance of doubt, Dispositions aggregate in excess of any monetary limitations as set forth in this Section 7.05)fiscal year; provided that any Disposition of any property pursuant to this Section 7.02 shall be for no less than the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds fair market value of such Disposition;
(f) To property at the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) time of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary execution of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any relevant agreement with respect to a JV Subsidiary such Disposition and taxes due with respect to such Dispositions shall be substantially contemporaneously paid (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iiireserved for future payment) Dispositions out of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Lawproceeds from such Disposition.
Appears in 2 contracts
Samples: Credit Agreement (Puget Energy Inc /Wa), Credit Agreement (Puget Energy Inc /Wa)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions a disposition of obsolete Cash Equivalents or obsolete, damaged, unnecessary, unsuitable, used or worn out property, equipment or other assets in the ordinary course of business or inventory (or other assets) held for sale in the ordinary course of business and dispositions of property or property determined by Borrower to no longer used or useful or economically practicable in the conduct of the business of the Borrower and its Restricted Subsidiaries or the disposition of inventory, goods or other assets in the ordinary course of business or no longer useful in the ordinary course of the Borrower’s business;
(b) Dispositions for the fair market value (as determined at the time of contractually agreeing to such Disposition) of the assets or Equity Interests issued or sold or otherwise disposed of; provided that
(i) except in the case of a Permitted Asset Swap, at least 75% of the consideration received in the Disposition, by the Borrower or such Restricted Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets, and
(ii) For purposes of clause (i) above, the amount of (A) any liabilities (as shown on the Borrower’s or the applicable Restricted Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or any Restricted Subsidiary (other than liabilities in excess of $10,000,000 that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets or are terminated, cancelled or otherwise cease to be necessary obligations of the Borrower in connection with such Disposition and, in each case from which the Borrower and all Restricted Subsidiaries have been validly released by all creditors in writing, (B) any securities or other obligations or assets received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or Restricted Subsidiary into cash (to the extent of the cash received) within 270 days following the closing of such Disposition, (C) any other assets used or useful in the business of the Borrower and its Restricted Subsidiaries or operations of any similar business or and (D) any Designated Non-Cash Consideration received by the Borrower or any of its Restricted Subsidiaries in respect of such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (D) that is at that time outstanding, not to exceed the greater of (x) $15,000,000 and (y) an amount equal to 15.00% of EBITDA of the Borrower on the date on which such Designated Non-Cash Consideration is received (with the fair market value of each item of Designated Non-Cash Consideration being measured at the Borrower’s option either at the time of contractually agreeing to such Disposition or JV Subsidiariesat the time received without giving effect to subsequent changes in value), shall be deemed to be cash;
(c) the granting of a Lien permitted by Section 7.01 or the making of any Restricted Payment or Permitted Investment that is permitted to be made, and is made, pursuant to Section 7.06;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of related transactions with an aggregate fair market value of less than $15,000,000;
(e) any disposition of property or assets, or issuance of securities by a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary;
(f) the lease, assignment, sublease, license or sublicense of any real or personal property in the ordinary course of business or consistent with past practice or that does not materially interfere with the business of the Borrower as then in effect;
(g) any issuance, sale, pledge or other disposition of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(h) dispositions arising from foreclosures, condemnations, eminent domain, seizure, nationalization or any similar action with respect to assets, dispositions of property subject to casualty events and (except for purposes of calculating net proceeds) dispositions necessary or advisable (as determined in good faith by the Borrower) in order to consummate any acquisition of any Person, business or assets;
(i) disposition of an account receivable in connection with the collection or compromise thereof;
(j) foreclosures, condemnation, expropriation, forced dispositions, eminent domain or any similar action (whether now owned by deed of condemnation or hereafter acquiredotherwise) with respect to assets or the granting of Liens not prohibited hereunder, and transfers of any property that have been subject to a casualty to the respective insurer of such property as part of an insurance settlement or upon receipt of the net proceeds of such casualty event the granting of Liens not prohibited hereunder;
(k) the sale, lease, assignment, license or sublease of inventory, equipment, accounts receivable, notes receivable or other current assets held for sale in the ordinary course of business;
(bl) Dispositions any exchange of furnitureassets for Permitted Business Assets (including a combination of Permitted Business Assets and a de minimis amount of Cash Equivalents) of comparable or greater market value, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under as determined in good faith by the ERF ProgramBorrower;
(cm) Dispositions the licensing, sublicensing or cross-licensing of inventory in the ordinary course of businessintellectual property or other general intangibles;
(dn) Dispositions the surrender or waiver of equipment obligations of trade creditors or non-core assets customers or other contract rights that were incurred in the ordinary course of business of the Borrower or any Restricted Subsidiary, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer or compromise, settlement, release or surrender of a contract, tort or other litigation claim, arbitration or other disputes;
(o) dispositions of Investments (including Equity Interests) in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements or rights of first refusal between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(p) to the extent allowable under Section 1031 of the Code, any exchange of like property (excluding any boot thereon) for use in a Permitted Business;
(q) the disposition of any assets (including Equity Interests of a Restricted Subsidiary) (i) acquired after the Closing Date in a transaction permitted hereunder, which assets are not used or useful in the core or principal business of the Borrower and its Restricted Subsidiaries, or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder;
(r) dispositions of property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) an amount equal to the net proceeds of such Disposition disposition are reasonably promptly applied to the purchase price of such replacement property;
(es) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties sale and other Dispositions, lease-back transaction in each case, an amount not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Dispositionexceed $25,000,000;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (iit) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims (including in tort) in the ordinary course of business,;
(viiu) Dispositions the unwinding or voluntary termination of property subject any Hedging Obligations;
(v) any disposition in connection with the Transactions; and
(w) the sale, transfer or other disposition of any assets in the TMSA Account. Notwithstanding anything in this Section 7.05 to foreclosurethe contrary, casualtydispositions under this Section 7.05 (except for clauses (i), eminent domain (k) and (s)) shall only be permitted if (i) no Event of Default exists or condemnation proceedings would result from such Disposition as of the date of the agreement governing such Disposition (including ii) the consideration received for the Disposition shall be in lieu an amount equal to fair market value thereof and (iii) no less than 75% of such consideration shall be paid in cash or Cash Equivalents. In no event shall the Borrower or any similar proceeding),
Restricted Subsidiary voluntarily dispose (viiiwhich, for the avoidance of doubt, shall include any such transfers to an Unrestricted Subsidiary) Dispositions made to comply with any order of any Governmental Authority Specified Intellectual Property to any person who is, in the case of the Borrower or a Guarantor, not the Borrower or a Guarantor, or in the case of a Non-Guarantor Subsidiary, not the Borrower or a Restricted Subsidiary, other than non-exclusive licenses, sublicenses or cross-licenses of intellectual property or other general intangibles. In the event that a transaction (or any applicable requirement portion thereof) meets the criteria of Lawthis Section 7.05 and would also be a permitted Restricted Payment or Permitted Investment, the Borrower, in its sole discretion, will be entitled to divide and classify such transaction (or a portion thereof) as an Disposition permitted hereunder and/or one or more of the types of permitted Restricted Payments or Permitted Investments.
Appears in 2 contracts
Samples: Credit Agreement (Turning Point Brands, Inc.), Credit Agreement (Turning Point Brands, Inc.)
Dispositions. Make The Borrower shall not, nor shall it permit any Subsidiary to, directly or indirectly, make any Disposition or, in the case of any Subsidiary, issue, sell or enter into otherwise Dispose of any agreement of such Subsidiary’s Equity Interests to make any DispositionPerson, exceptexcept that, so long as no Default exists or would result therefrom:
(a) Dispositions of obsolete or worn out property or property determined permitted by Borrower Section 7.03 and 7.04 and, notwithstanding anything in this Section 7.05 to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariescontrary, whether now owned or hereafter acquired, in the ordinary course of businessDispositions permitted by Section 7.06;
(b) Dispositions among the Borrower and its Subsidiaries; provided that (i) if the transferor is a Grantor or a Subsidiary Guarantor, then the transferee must be a Grantor or a Subsidiary Guarantor, as applicable, (ii) if the property subject to such Disposition includes any Borrowing Base Asset, then, upon consummation of furnituresuch Disposition such property shall either continue to qualify as a Borrowing Base Asset or shall have been removed as a Borrowing Base Asset pursuant to a Release Transaction in accordance with the provisions of Section 2.18(c) and (iii) if the property subject to such Disposition includes any Collateral, fixtures and equipment then, upon consummation of such Disposition such property shall either continue to constitute Collateral or other personal property the Borrowing Base Asset constituting or related to AINC or an Affiliate thereof that is leased back under such Collateral shall have been removed as a Borrowing Base Asset pursuant to a Release Transaction in accordance with the ERF Programprovisions of Section 2.18(c);
(c) Dispositions the issuance, sale or other Disposition of inventory in limited partnership interests of the ordinary course Operating Partnership, but solely to the extent that, after giving effect thereto, a Change of businessControl has not occurred;
(d) Dispositions the Disposition of equipment any property (including Equity Interests in Subsidiaries) that does not constitute a Borrowing Base Asset or non-core assets Collateral, so long as the Loan Parties are in compliance with the ordinary course provisions of business Section 7.11 on a pro forma basis immediately after giving effect to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and (ii) the proceeds consummation of such Disposition are reasonably promptly applied to the purchase price of such replacement property;Disposition; and
(e) Dispositions of Equity Interests the Disposition of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations property constituting a Borrowing Base Asset or Collateral so long as set forth in this Section 7.05); provided that the Borrower complies contemporaneously with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds consummation of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted such property is released pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding2.18(c),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Law.
Appears in 2 contracts
Samples: Credit Agreement (Safety, Income & Growth, Inc.), Credit Agreement (Safety, Income & Growth, Inc.)
Dispositions. Make The Borrower will not, and will not permit any Subsidiary to, make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of property no longer used or useful in the business, or obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiaries, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business real property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by any Subsidiary to the Borrower or to a Subsidiary, provided that if the transferor of such property is a Subsidiary Guarantor, the transferee must be either the Borrower or a Subsidiary Guarantor;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition6.03;
(f) To the extent constituting Dispositionsleases, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include exclusive licenses, subleases or non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease exclusive sublicenses granted in the ordinary course of business and on ordinary commercial terms that do not interfere in any material respect with the business of the Borrower and its Subsidiaries;
(iig) Restricted Payments permitted by Section 6.05 and Investments permitted by Section 6.06; and
(h) Dispositions by the Borrower and its Subsidiaries not otherwise permitted under this Section; provided that such Disposition must (a) be for the fair market value, (b) with respect to any surrender aggregate consideration received in respect thereof in excess of $1,000,000, at least 75% of consideration for such Disposition must consist of cash or waiver Cash Equivalents (with any securities, notes or other obligations or assets received by the Borrower or any Subsidiary from such transferee that are converted by such person into cash or Cash Equivalents (to the extent of contractual rights the cash or Cash Equivalents received) within one hundred eighty (180) days following the settlementclosing of the applicable disposition, release or surrender treated as cash) and (c) the aggregate book value of contractual rights or litigation claims all property Disposed of pursuant to this clause (including in torti) in the ordinary course of business,any fiscal year shall not exceed $3,000,000.; and
(viii) Dispositions of property subject pursuant to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Lawthe Permitted Sale and Leaseback Transaction.
Appears in 2 contracts
Samples: Credit Agreement (TerrAscend Corp.), Credit Agreement (TerrAscend Corp.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to surplus assets (including dormant manufacturing facilities) that are no longer be necessary used or usable in the business or operations of Borrower or the Company and its Subsidiaries or JV Restricted Subsidiaries, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business real property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by any Subsidiary to the Company or to a Wholly Owned Subsidiary; provided, that, if the transferor of such property is a Borrower, the transferee thereof must either be the Company or another Borrower;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such DispositionSections 7.04 or 7.06;
(f) To Dispositions of property or assets in an aggregate amount in any fiscal year that, when combined with all other Dispositions previously made under this Section 7.05(f) during such fiscal year (and after giving pro forma effect to such proposed Disposition), do not exceed twelve and one-half percent (12.5%) of the Total Consolidated Assets of the Company and its Restricted Subsidiaries as of the end of the immediately preceding fiscal year for which financial statements are required to be delivered to the Administrative Agent and the Lenders pursuant to Section 6.01, or for the 2019 fiscal year, the Audited Financial Statements (it being acknowledged and agreed that no Default shall be deemed to have occurred if the aggregate amount of all such Dispositions in any fiscal year shall at a later time exceed twelve and one-half percent (12.5%) of the Total Consolidated Assets of the Company and its Restricted Subsidiaries so long as at the time of each such Disposition (and immediately after giving pro forma effect thereto) each such Disposition was permitted to be made under this Section 7.05(f)); provided, that, to the extent constituting Dispositions, (ithe proceeds of any Disposition made under this Section 7.05(f) Investments are reinvested within the same fiscal year in which such Disposition is made in assets used or usable in a business permitted by Section 7.037.07 as certified in writing by a Responsible Officer to the Administrative Agent (which such writing shall indicate the date and amount of such reinvestment and the assets or businesses reinvested in), (iithen from and after the date of receipt by the Administrative Agent of the certificate evidencing such reinvestment the amount so reinvested will be credited against the amount of Dispositions made in such fiscal year in determining the aggregate amount of Dispositions permitted under this Section 7.05(f); provided, further, that, the amount of any Disposition for purposes of compliance with this Section 7.05(f) Restricted Payments permitted shall be the fair market value as determined by Section 7.06, and (iii) Liens permitted by Section 7.01the Company in good faith;
(ig) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party the Company or any other Restricted Subsidiary may write-off, discount, sell or Controlled JV Subsidiary otherwise Dispose of any Loan Party; and
(h) Parent defaulted or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions past due receivables and similar obligations in the ordinary course of business and not as part of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,an accounts receivable financing transaction;
(iih) Dispositions, to the extent required pursuant to the terms of any agreement with respect to constituting a JV Subsidiary (includingDisposition, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination issuances of any lease Equity Interests in the ordinary course of business and (ii) the issuance of Equity Interests of the Company or any surrender Restricted Subsidiary pursuant to an employee stock incentive plan or waiver grant or similar equity plan or 401(k) plans of contractual the Company or any Restricted Subsidiary for the benefit of directors, officers, employees or consultants;
(i) the Disposition of any Swap Contract;
(j) Dispositions of Investments in cash and Cash Equivalents;
(k) licenses and sublicenses of intellectual property rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,business not interfering, individually or in the aggregate, in any material respect with the conduct of the business of the Company and its Restricted Subsidiaries, taken as a whole;
(viil) leases, subleases, licenses or sublicenses of real or personal property granted by the Company or any of its Restricted Subsidiaries to others in the ordinary course of business not interfering in any material respect with the business of the Company and its Restricted Subsidiaries, taken as a whole;
(m) transfers or other Dispositions of property subject to foreclosurecondemnation, casualty, eminent domain takings or condemnation proceedings (including in lieu thereof or any similar proceeding),casualty events;
(viiin) Dispositions made to comply with any order of Unrestricted Subsidiaries, including Dispositions of any Governmental Authority Indebtedness of, or other Investments in, Unrestricted Subsidiaries;
(o) Dispositions of assets acquired pursuant to an acquisition or other Investment which assets are not used or useful to the core or principal business of the Company and its Restricted Subsidiaries;
(p) Dispositions of Receivables and Related Assets pursuant to the terms of any applicable requirement Permitted Receivables Financing in accordance with the terms thereof;
(q) Dispositions of Lawassets pursuant to Tax Incentive Programs; and
(r) Dispositions of assets previously disclosed in reasonable detail to the Administrative Agent and the Lenders in writing at least three (3) Business Days prior to the Restatement Effective Date; provided, that, any Disposition made between a Loan Party and a Subsidiary of the Company that is not a Loan Party shall be for fair market value (determined in good faith by the Company at the time of such Disposition).
Appears in 2 contracts
Samples: Credit Agreement (Mohawk Industries Inc), Credit Agreement (Mohawk Industries Inc)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or obsolete, worn out property or other property determined by Borrower to no longer be necessary used or useful in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesthe Borrower, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furnitureTerm Financed Aircranes, fixtures inventory and other property (other than equipment or other personal property to AINC real property) in the ordinary course of business (for the avoidance of doubt, the sale or an Affiliate thereof that lease of manufactured and remanufactured aircranes is leased back under within the ERF Programordinary course of business);
(c) Dispositions of inventory in the ordinary course of business;
(d) Dispositions of equipment or non-core assets in the ordinary course of business real property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and property, (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyproperty or (iii) the board of directors or senior management of the Borrower or such Subsidiary has determined in good faith that the failure to replace such property will not be detrimental to the business of the Borrower or such Subsidiary;
(d) Dispositions of property by any Subsidiary to the Borrower or to a wholly-owned Subsidiary; provided that if the transferor of such property is a First Lien Guarantor, the transferee thereof must either be the Borrower or a First Lien Guarantor;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, permitted by Section 7.04;
(f) Dispositions not otherwise permitted by under this Section 7.05 other than subsections (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05k) or (m); provided that the Borrower complies shall have complied with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition2.04;
(fg) To the extent constituting Dispositions, licenses of Intellectual Property (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, both exclusive and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real propertiesexclusive) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and substantially consistent with past practice;
(iih) any surrender Investments permitted under Section 7.02;
(i) the sale, transfer or waiver disposition of contractual rights accounts in connection with the collection or the settlement, release or surrender of contractual rights or litigation claims (including in tort) compromise thereof in the ordinary course of business,;
(viij) Capital Stock issued in connection with Permitted Acquisitions;
(k) any sale-leaseback arrangements permitted hereby;
(l) rights of way, easements, and licenses necessary for the conduct of Borrower’s or any of its Subsidiaries’ businesses; and
(m) Dispositions by the Borrower and its Subsidiaries not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition, no Default shall exist or would result from such Disposition and (ii) the aggregate book value of all property subject Disposed of in reliance on this clause (i) in any fiscal year shall not exceed the Threshold Amount; provided, however, that any Disposition pursuant to foreclosure, casualty, eminent domain or condemnation proceedings clauses (including in lieu thereof or any similar proceeding),
a) through (viiim) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Lawshall be for fair consideration.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Erickson Air-Crane Inc), Second Lien Credit Agreement (Erickson Air-Crane Inc)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete obsolete, damaged, worn out, used or worn out surplus property or property determined by Borrower to no longer be necessary in the business or operations (including for purposes of Borrower or its Subsidiaries or JV Subsidiariesrecycling), whether now owned or hereafter acquired, acquired and Dispositions of property of the Borrower and the Restricted Subsidiaries that is no longer used or useful in the conduct of the business or economically practicable or commercially desirable to maintain;
(b) Dispositions of property in the ordinary course of business;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(d) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property; provided that to the extent the property being transferred constitutes Collateral such replacement property shall constitute Collateral;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 7.02 (includingother than Section 7.02(o)), for the avoidance Section 7.04 (other than Section 7.04(h)) and Section 7.06 (other than Section 7.06(d)) and Permitted Liens (other than Section 7.01(l)(i));
(f) Dispositions of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05)property pursuant to Sale Leaseback Transactions; provided that (i) no Event of Default exists or would result therefrom (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default exists) and (ii) such Disposition shall be for no less than the fair market value of such property at the time of such Disposition;
(g) Dispositions of Cash Equivalents; provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition;
(h) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), which do not materially interfere with the business of the Borrower complies with and the applicable requirements Restricted Subsidiaries, taken as a whole; provided, that such Disposition shall be for no less than the fair market value of Section 2.04(b)such property at the time of such Disposition;
(i) with respect Dispositions of property subject to Casualty Events upon receipt of the Net Cash Proceeds of such DispositionCasualty Event;
(fj) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicableprovided that:
(i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Default exists), no Default shall exist or would result from such Disposition;
(ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of the greater of 10.00% of Closing Date EBITDA (i.e., $17,460,000) and 10.00% of TTM Consolidated Adjusted EBITDA as of the date of the Disposition, the Borrower or any of the Restricted Subsidiaries shall receive not less than 75.00% of such consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (ii) each of the following shall be deemed to be cash;
(A) any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing;
(B) any securities received by such Borrower or Restricted Subsidiary from such transferee that are converted by such Borrower or Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within one hundred and eighty days following the closing of the applicable Disposition; and
(C) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is at that time outstanding, not in excess of the greater of (I) 20.00% of Closing Date EBITDA (i.e., $34,920,000) and (II) 20.00% of TTM Consolidated Adjusted EBITDA as of the date of the Disposition, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(iii) such Disposition shall be for no less than the fair market value of such property at the time of such Disposition (this clause (j), the “General Asset Sale Basket”);
(k) Dispositions of Investments in Joint Ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the Joint Venture parties set forth in joint venture arrangements and similar binding arrangements;
(l) Dispositions or discounts of accounts receivable and related assets in connection with the collection, compromise or factoring thereof;
(m) Dispositions (including issuances or sales) of Equity Interests in, or Indebtedness owing to, or of other securities of, an Unrestricted Subsidiary;
(n) Dispositions to the extent of any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by the Borrower or any of the Restricted Subsidiaries to the extent allowable under Section 1031 of the Code (or comparable or successor provision);
(o) Dispositions in connection with the unwinding of any Hedge Agreement;
(p) Dispositions by the Borrower or any Restricted Subsidiary of assets in connection with the closing or sale of a facility in the ordinary course of business of (A) receivables the Borrower and its Restricted Subsidiaries, which consist of fee or leasehold interests in connection with the collectionpremises of such facility, settlement or compromise thereof (including any discount and/or forgiveness thereof)the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such facility; provided that as to each and all such sales and closings, (Bi) equipment, (C) other current assets or (D) immaterial assets,
no Event of Default shall result therefrom and (ii) Dispositions, to the extent required pursuant to the such sale shall be on commercially reasonable prices and terms of any agreement with respect to in a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),bona fide arm’s-length transaction;
(iiiq) Dispositions (including bulk sales) of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount the inventory of a Loan Party not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business in connection with facility closings, at arm’s length;
(r) Disposition of Securitization Assets to a Securitization Subsidiary in connection with a Qualified Securitization Financing, provided, that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition;
(s) the lapse, abandonment or discontinuance of the use or maintenance of any Intellectual Property if previously determined by the Borrower or any Restricted Subsidiary in its reasonable business judgment that such lapse, abandonment or discontinuance is desirable in the conduct of its business,;
(t) Disposition of any property or asset with a fair market value not to exceed with respect to any transaction the greater of (i) 10.00% of Closing Date EBITDA (i.e., $17,460,000) and (ii) 10.00% of TTM Consolidated Adjusted EBITDA as of the date of the Disposition;
(u) Disposition of assets acquired in a Permitted Acquisition or other Investment permitted hereunder that the Borrower determines will not be used or useful in the business of the Borrower and its Subsidiaries; and
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business Excluded Assets by Non-Loan Parties and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject Excluded Assets by Loan Parties for fair market value. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to foreclosureany Person other than a Loan Party, casualtysuch Collateral shall be sold free and clear of the Liens created by the Loan Documents, eminent domain or condemnation proceedings and, if requested by the Administrative Agent, upon the certification by the Borrower that such Disposition is permitted by this Agreement, and without limiting the provisions of Section 10.11 the Administrative Agent shall be authorized to, and shall, take any actions reasonably requested by the Borrower in order to effect the foregoing (including and the Lenders hereby authorize and direct the Administrative Agent to conclusively rely on any such certification by the Borrower in lieu thereof or any similar proceedingperforming its obligations under this sentence),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Law.
Appears in 2 contracts
Samples: First Lien Credit Agreement (WCG Clinical, Inc.), First Lien Credit Agreement (WCG Clinical, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business real property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property (i) to Xxxxxxxxx or to a Wholly-Owned Subsidiary of Xxxxxxxxx; provided that if the transferor of the property is a Loan Party, the transferee must be a Loan Party or (ii) to a joint venture, any non-Wholly-Owned Subsidiary of Xxxxxxxxx or any Subsidiary that is not a Loan Party, to the extent cash for the fair market value of such property is received from such Disposition or such Disposition constitutes an Investment permitted by Section 7.03(c);
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition7.04;
(f) To Dispositions of Cash Equivalents and Eligible Investments in the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;ordinary course of business; 172003018 161402032v1
(ig) Any Loan Party may make a Disposition to any other Loan Party and the sale, assignment, transfer, Disposition, discount or forgiveness of accounts receivable (iix) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business (exclusive of factoring or similar arrangements) or (Ay) receivables in connection with the collection, settlement collection or compromise thereof (including thereof, so long as the account debtor with respect thereto has instituted or consented to the institution of any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,proceeding under any Debtor Relief Law;
(iih) Dispositionsleases, subleases, licenses and sublicenses granted to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease others in the ordinary course of business that do not materially interfere with the ordinary conduct of the business of Xxxxxxxxx or any of its Subsidiaries and do not secure Indebtedness; and
(i) in addition to the Dispositions permitted by clause (a) through clause (h) of this Section 7.05, Dispositions of property of Xxxxxxxxx or any Subsidiary, including Equity Interests of any Subsidiary; provided that such Dispositions consummated during the term of this Agreement in the aggregate do not exceed twenty-five percent (25%) of the total assets of Xxxxxxxxx and its Subsidiaries as of the Closing Date; provided further that to the extent the property subject to any such Disposition represents more than five percent (5%) of the total assets of Xxxxxxxxx and its Subsidiaries as of the Closing Date, (i) no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to each such Disposition and the application of proceeds thereof, Xxxxxxxxx shall be in Pro Forma Compliance as of the date of the Disposition with the covenants set forth in Section 7.12 of this Agreement; provided, however, that any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims Disposition pursuant to clauses (including in torta) in the ordinary course of business,
through (viii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including having a book value in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order excess of any Governmental Authority or any applicable requirement of Law$25,000,000 shall be for fair market value.
Appears in 2 contracts
Samples: Credit Agreement (Carpenter Technology Corp), Credit Agreement (Carpenter Technology Corp)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Company and the Restricted Subsidiaries;
(b) Dispositions of furniture, fixtures inventory and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory immaterial assets in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(ed) Dispositions of property (i) to the Company or to a Restricted Subsidiary; provided that if the transferor of such property is a Guarantor or the Company, the transferee thereof must either be the Company or a Guarantor, or in the case of a transfer by an Overseas Guarantor, the applicable Overseas Borrower, (ii) to the extent such transaction constitutes an Investment permitted under Section 7.02, or (iii) consisting of Equity Interests of any Property Level Foreign Subsidiaries to other Foreign Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(fe) To the extent constituting Dispositions, (i) Investments Dispositions permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, Sections 7.04 and (iii) 7.06 and Liens permitted by Section 7.01;
(if) Any Loan Party may make a Disposition to any other Loan Party Dispositions of cash and Cash Equivalents;
(iig) any Subsidiary Dispositions of accounts receivable in connection with the collection or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andcompromise thereof;
(h) Parent leases, subleases, licenses or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof sublicenses (including any discount and/or forgiveness thereofthe provision of software under an open source license), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease each case in the ordinary course of business and (ii) any surrender or waiver which do not materially interfere with the business of contractual rights or Holdings, the settlement, release or surrender of contractual rights or litigation claims (including in tort) in Company and the ordinary course of business,Restricted Subsidiaries;
(viii) transfers of property to the extent subject to Casualty Events;
(j) Dispositions of property subject not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to foreclosurea legally binding commitment entered into at a time when no Event of Default exists), casualtyno Event of Default shall exist or would result from such Disposition, eminent domain (ii) the aggregate book value of all property Disposed of in reliance on this clause (j) shall not exceed $300,000,000 in the aggregate and (iii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $25,000,000, the Company or condemnation proceedings a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents (including in lieu thereof each case, free and clear of all Liens at the time received, other than nonconsensual Liens permitted by Section 7.01 and Liens permitted by Section 7.01(s) and clauses (i) and (ii) of Section 7.01(u)); provided, however, that for the purposes of this clause (iii), each of the following shall be deemed to be cash: (A) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Company or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Company and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing and (B) any securities received by the Company or such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of the applicable Disposition;
(k) Dispositions listed on Schedule 7.05(k);
(l) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements; and
(m) the Disposition for consideration not in excess of €15,000,000 of the building owned by Verlag Das Beste GmbH located at Xxxxxxxxxxxxxxx 0, Xxxxxxxxx 00000. provided that any Disposition of any property pursuant to this Section 7.05(j), (k) and (m) shall be for no less than the fair market value of such property at the time of such Disposition. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than Holdings, the Company or any similar proceeding),
(viii) Dispositions made Restricted Subsidiary, such Collateral shall be sold free and clear of the Liens created by the Loan Documents without further action by the Administrative Agent, and the Administrative Agent shall be authorized to comply with take any actions deemed appropriate in order of any Governmental Authority or any applicable requirement of Lawto effect the foregoing.
Appears in 2 contracts
Samples: Credit Agreement (Readers Digest Association Inc), Credit Agreement (Direct Holdings Libraries Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of damaged, negligible, surplus, obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions Disposition of furniture, fixtures and equipment accounts receivable in connection with the collection or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Programcompromise thereof;
(c) leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower and its Subsidiaries;
(d) the sale or other Disposition of Cash Equivalents;
(e) Dispositions of inventory accounts receivable and related assets of the type specified in the definition of Qualified Receivables Transaction (or a fractional undivided interest therein) by a Receivables Subsidiary in a Qualified Receivables Transaction;
(f) Dispositions of products, services or accounts receivables (including at a discount) in the ordinary course of business;
(dg) Dispositions of equipment or non-core assets in the ordinary course of business real property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(eh) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted property by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect or any Subsidiary to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting DispositionsBorrower, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01a Subsidiary Guarantor or Qualified Subsidiary;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andDispositions permitted by Section 7.04;
(hj) Parent or any Subsidiary or Controlled JV Subsidiary licensing of Parent may make or effect, as applicable:
(i) Dispositions IP Rights in the ordinary course of business or in accordance with industry practice;
(k) Dispositions of assets as a result of a foreclosure by the Borrower or any Subsidiary on any secured Investment or other transfer of title with respect to any secured Investment in default; and
(Al) receivables in connection with Dispositions by the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof)Borrower and its Subsidiaries not otherwise permitted under this Section 7.05; provided that at the time of such Disposition, (Bi) equipmentno Default shall have occurred and be continuing, (Cii) other current not less than 75% of the purchase price for such asset shall be paid to the Borrower or such Subsidiary in cash, (ii) the aggregate Fair Market Value of all property Disposed of in reliance on this Section 7.05(l) in any fiscal year of the Borrower shall not exceed $10,000,000 (provided that any amount so unused in any such fiscal year may be carried forward to any succeeding fiscal year so long as the aggregate Fair Market Value of any assets or so Disposed in any such fiscal year pursuant to this Section 7.05(l) after giving effect to such carryover shall not exceed $20,000,000) and (Diii) immaterial assets,the Net Cash Proceeds thereof are applied in accordance with Section 2.06(b)(iii); provided that each of the following shall be deemed to be cash for the purposes of clause (ii) above:
(i) Cash Equivalents;
(ii) Dispositionsany liabilities (as shown on the Issuer’s most recent consolidated balance sheet) of the Borrower or any Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to any of the Obligations) that are assumed by the transferee of any such assets pursuant to an agreement that releases the Borrower or such Subsidiary from further liability;
(iii) any securities, notes or other obligations received by the Borrower or any Subsidiary from such transferee that are converted by the Borrower or such Subsidiary into cash within 180 days of receipt, to the extent required pursuant to of the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired cash received in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,that conversion; and
(iv) leases and/or licenses of Hotel Properties and assets related thereto (includingany Designated Noncash Consideration received by the Borrower or a Subsidiary, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (ii) any surrender or waiver Designated Noncash Consideration the Fair Market Value of contractual rights or which, when taken together with all other Designated Noncash Consideration received pursuant to this clause (ii) does not exceed the settlementgreater of $10,000,000 and 2% of Total Assets at the time of receipt since the Closing Date, release or surrender with the Fair Market Value of contractual rights or litigation claims (including each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Law.value;
Appears in 2 contracts
Samples: Credit Agreement (American Renal Associates LLC), Credit Agreement (American Renal Associates LLC)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to no longer be necessary in used or useful to the business or operations of Borrower or its Subsidiaries or JV Subsidiariesbusiness, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furniture(i) inventory in the ordinary course of business, fixtures and equipment (ii) of cash or other personal property to AINC or an Affiliate thereof Cash Equivalents in a manner that is leased back under not prohibited by the ERF Programterms of the Loan Documents, (iii) consisting of the licensing, on a non-exclusive basis, of patents, trademarks, copyrights, and other intellectual property rights in the ordinary course of business, (iv) consisting of the leasing of real property or equipment in the ordinary course of business in a transaction that does not constitute a sale and leaseback transaction, and (v) of Equity Interests of any Subsidiary to members of its board of directors in order to qualify such members of required by applicable law;
(c) Dispositions of inventory in the ordinary course of business;
(d) Dispositions of equipment or non-core assets in the ordinary course of business real property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement equipment or real property and or (ii) the proceeds of such Disposition are reasonably promptly applied (or such amount is used prior to the acquisition date) to the purchase price of such replacement property;
(d) Dispositions of property among the Borrowers or of property by any non-Borrower Subsidiary to a Borrower or to a wholly-owned non-Borrower Subsidiary; provided that if the transferor of such property is a Guarantor, the transferee thereof must either be a Borrower or a Guarantor;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition7.04 or 7.06;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary Dispositions or Controlled JV Subsidiary (other than a Loan Party) settlements of a Loan Party may make a Disposition to any Loan Party delinquent notes or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions accounts receivable in the ordinary course of business for purposes of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,collection only; and
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iiig) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment by the Parent and its Subsidiaries not otherwise permitted pursuant to under this Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including7.05; provided, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) that (i) any termination at the time of any lease in the ordinary course such Disposition, no Event of business Default under Section 8.01(a), 8.01(b)(with respect to Section 7.11), 8.01(f) or 8.01(g) shall exist or would result from such Disposition and (ii) the aggregate book value of all property Disposed of in reliance on this clause (g) shall not exceed 15% of Consolidated Tangible Net Worth during any surrender trailing 12-month period, which shall be calculated as of the last day of the most recently ended fiscal quarter for which financial statements required by Section 6.01(a) or waiver of contractual rights or (b) have been delivered; provided, however, that any Disposition pursuant to clauses (a), (c) and (g) shall be for fair market value (as determined in good faith by the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceedingBorrowers),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Law.
Appears in 2 contracts
Samples: Credit Agreement (Unifirst Corp), Credit Agreement (Unifirst Corp)
Dispositions. Make Until the Rollover Date, the Borrower will not, and will not permit any Disposition or enter into any agreement to Subsidiary to, make any Disposition, except:
(a) Dispositions of obsolete or worn out Property and Dispositions of property or property determined by Borrower to no longer be necessary used or useful in the conduct of the business or operations of the Borrower or its Subsidiaries or JV and the Subsidiaries, whether now owned or hereafter acquiredin each case, in the ordinary course of business;
(b) Dispositions of furnitureinventory and immaterial assets, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in each case, in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business Property to the extent that (i) such property Property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and Property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyProperty;
(d) Dispositions of Property to the Borrower or to a Subsidiary;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) Dispositions permitted by Sections 6.04 and 6.05 and (ii) Liens permitted by Section 6.02 and (iii) Dispositions of Receivables and Permitted Receivables Related Assets in connection with respect to the Net Cash Proceeds of such DispositionPermitted Receivables Facilities;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, Dispositions of cash and (iii) Liens permitted by Section 7.01Cash Equivalents;
(ig) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary Dispositions of accounts receivable in connection with the collection or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andcompromise thereof;
(h) Parent leases, subleases, licenses or any Subsidiary or Controlled JV Subsidiary of Parent may make or effectsublicenses, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease each case in the ordinary course of business and (ii) any surrender or waiver which do not materially interfere with the business of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in Borrower and the ordinary course of business,Subsidiaries;
(viii) transfers of Property to the extent subject to Casualty Events;
(j) Dispositions of property subject other Property by the Borrower and its Subsidiaries with an aggregate fair market value (as determined in good faith by the Borrower) for all such Dispositions in any fiscal year not to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),exceed $100,000,000;
(viiik) Dispositions made to comply with any order of Investments in, and issuances of any Governmental Authority Equity Interests in, joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(l) any applicable requirement of Law.Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in its best interests and not materially adverse to the Lenders and, if such Subsidiary is a Loan Party, such Loan Party’s assets and property are transferred to another Loan Party; and
Appears in 2 contracts
Samples: Interim Loan Agreement (Constellation Brands, Inc.), Interim Loan Agreement (Constellation Brands, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business real property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by any Restricted Subsidiary to the Borrower or to a Wholly-Owned Restricted Subsidiary; provided that if the transferor of such property is a Guarantor, the transferee thereof must either be the Borrower or a Guarantor;
(e) Dispositions permitted by Section 7.04;
(f) any arrangement, directly or indirectly, with any Person whereby it shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property which it intends to use for substantially the same purpose or purposes as the property being sold or transferred unless (i) the sale of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not such property is otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary Capitalized Lease obligation, Synthetic Lease Obligations or Controlled JV Subsidiary Liens arising in connection therewith are permitted by clause (other than a Loan Partyvi) of a Loan Party may make a Disposition to the definition of “Permitted Indebtedness” and Section 7.01, as applicable;
(g) Dispositions satisfying any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Partyclauses (i) through (viii) of the proviso of the definition of Asset Sale; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, Dispositions by the Borrower and its Restricted Subsidiaries so long as applicable:
(i) Dispositions such Asset Sale is for consideration at least 75% of which is cash or Permitted Investments (other than in the ordinary course case of a like-kind exchange or trade-in of one asset for another asset used or useful in the business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereofBorrower and its Subsidiaries), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, such consideration is at least equal to the extent required pursuant to fair market value of the terms of any agreement with respect to a JV Subsidiary (includingassets being sold, but not limited totransferred, buy/sell arrangements between joint venture leased or similar parties),
disposed of, (iii) Dispositions the Borrower will be in compliance with each of non-core assets (the financial covenants in Section 7.11 as of the last day of the most recent fiscal quarter for which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted financial statements have been delivered pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
6.01 (or, if prior to any such delivery, as of the date of the Audited Financial Statements) and no Default shall have occurred or be continuing and (iv) leases and/or licenses if the fair market value of Hotel Properties and the assets related thereto being disposed exceeds $5,000,000, the Borrower shall have delivered to the Administrative Agent a certificate in reasonable detail demonstrating that, upon giving effect to such Asset Sale, the Borrower will be in compliance with clause (including, without limitation, intellectual propertyiii) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Lawabove.
Appears in 2 contracts
Samples: Credit Agreement (Polypore International, Inc.), Credit Agreement (Polypore International, Inc.)
Dispositions. Make any Disposition (other than as part of or enter into any agreement to make any Disposition, in connection with the Transactions) except:
(a) Dispositions of obsolete obsolete, damaged, worn out, used or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariessurplus property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries;
(b) Dispositions of furniture, fixtures inventory and equipment or other personal property to AINC or an Affiliate thereof that is leased back under goods held for sale in the ERF Program;
ordinary course of business and immaterial assets (cconsidered in the aggregate) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and constituting Permitted Investments (other Dispositions, in each case, not than pursuant to clause (d) thereof) or otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, Dispositions permitted by Section 7.04 (other than clause (g) thereof) and (iii) Liens permitted by Section 7.01;
(if) Any Loan Party may make a Disposition Dispositions of property pursuant to any other Loan Party Sale and Lease-Back Transactions;
(iig) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) Dispositions of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andcash, Cash Equivalents and Investment Grade Securities;
(h) Parent leases, subleases, service agreements, product sales, licenses or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof sublicenses (including any discount and/or forgiveness thereofagreements involving the provision of software in copy or as a service, and related data and services), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(i) transfers of property subject to Casualty Events;
(j) Dispositions of property, whether tangible or intangible, for fair market value; provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default exists), no Event of Default shall exist or would result from such Disposition; (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $15,000,000, the Borrower or any Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (ii), all of the following shall be deemed to be cash: (A) any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of the Borrower or such Restricted Subsidiary that are (i) assumed by the transferee with respect to the applicable Disposition or (ii) that are otherwise cancelled or terminated in connection with the transaction with such transferee and, in each case, for which the Borrower and all of the Restricted Subsidiaries (to the extent previously liable thereunder) shall have been validly released by all applicable creditors in writing, (B) any securities, notes or other obligations or assets received by the Borrower or Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within one hundred and eighty (180) days following the closing of the applicable Disposition, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to the Borrower or its Restricted Subsidiaries), to the extent that the Borrower and all of the Restricted Subsidiaries (to the extent previously liable thereunder) are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition and (D) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (D) that is at that time outstanding, not in excess (as of the date of the receipt of such Designated Non-Cash Consideration) of the greater of $50,000,000 and 2.50% of Total Assets, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and (iii) the Net Cash Proceeds thereof are applied to prepay the Loans to the extent required by Section 2.03(b)(ii);
(k) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(l) Dispositions or discounts of accounts receivable in connection with the collection or compromise thereof;
(m) any issuance or sale of Equity Interests in, or sale of Indebtedness or other securities of, an Unrestricted Subsidiary;
(n) to the extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by the Borrower or any of the Restricted Subsidiaries that is not in contravention of Section 7.07;
(o) the unwinding of any Hedging Obligations;
(p) any Disposition of Securitization Assets to a Securitization Subsidiary;
(q) abandon, or cease to maintain or cease to enforce intellectual property rights in each case in the ordinary course of business and where the loss of which does not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(r) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business;
(s) any surrender or waiver of contractual contract rights or the settlement, release or surrender of contractual contract rights or other litigation claims (including in tort) in the ordinary course of business,; and
(viit) Dispositions the issuance of property subject directors’ qualifying shares and shares issued to foreclosureforeign nationals as required by applicable law. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than a Loan Party, casualtysuch Collateral shall be sold free and clear of the Liens created by the Loan Documents, eminent domain or condemnation proceedings (including and, if requested by the Administrative Agent, upon the certification by the Borrower that such Disposition is permitted by this Agreement, the Administrative Agent shall be authorized to take any actions deemed appropriate in lieu thereof or any similar proceeding),
(viii) Dispositions made order to comply with any order of any Governmental Authority or any applicable requirement of Laweffect the foregoing.
Appears in 2 contracts
Samples: Credit Agreement (ATD Corp), Credit Agreement (American Tire Distributors Holdings, Inc.)
Dispositions. Make any Disposition or enter into of any agreement to make any Dispositionof its property, except:
: (a) Dispositions of obsolete obsolete, used, surplus, negligible, uneconomical or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of business;
business and Dispositions of property no longer used or useful in the conduct of the business of the Borrower or any Restricted Subsidiary or Dispositions of non-core assets and property or assets and property otherwise commercially unreasonable to retain; (b) Dispositions of furniture, fixtures inventory and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory immaterial assets in the ordinary course of business;
; (dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
; (d) Dispositions of property by the Borrower or any Restricted Subsidiary to the Borrower or another Restricted Subsidiary; provided that if the transferor of such property is a Loan Party (x) the transferee thereof must be a Loan Party or (y) to the extent such transaction constitutes an Investment in a Restricted Subsidiary that is not a Loan Party, such transaction is permitted by Section 7.02; (e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and permitted (other Dispositions, in each case, not otherwise permitted than by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in reference to this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.037.02, (ii) Restricted Payments permitted by Section 7.06, 7.04 and (iii) Section 7.06 and Liens permitted by Section 7.01;
; (f) Dispositions of cash and Cash Equivalents; (g) Dispositions of accounts receivable in connection with the collection or compromise thereof; (h) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower or any Restricted Subsidiary; (i) Any Loan Party may make a Disposition transfers of property subject to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan PartyCasualty Events; and156
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(ij) Dispositions in the ordinary course of business consisting of the abandonment or lapse of IP Rights which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower or any Restricted Subsidiary or are no longer used or commercially reasonable to maintain; (Ak) receivables Dispositions of Investments in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, JV Entities to the extent required by, or made pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture the JV Entity parties set forth in, JV Entity arrangements and similar binding arrangements (i) in substantially the form as such arrangements are in effect on the Closing Date or similar parties(ii) to the extent that the Net Cash Proceeds of such Disposition are either reinvested or applied to prepay the Initial Term Loans and/or the 2022 Incremental Term B-2 Loans pursuant to Section 2.06(b),
; (iiil) Dispositions in connection with any Permitted Tax Restructuring; (m) Dispositions of non-core real property and related assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and in connection with relocation activities for directors, officers, members of management, employees or consultants of the Restricted Companies; (iin) any surrender or waiver Dispositions of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) tangible property in the ordinary course of business,
business as part of a like-kind exchange under Section 1031 of the Code; (viio) voluntary terminations of Swap Contracts; (p) [reserved]; (q) Permitted Sale Leasebacks; (r) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof assets or issuance or sale of Equity Interests of any Restricted Subsidiary by the Borrower or any similar proceedingRestricted Subsidiary not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition, no Specified Event of Default shall exist or would result from such Disposition, (ii) such Disposition is made for fair market value, (iii) with respect to any Disposition (or series of related Dispositions) under this Section 7.05(r) for a purchase price in excess of the greater of (x) $75,000,000 and (y) 10.0% of Consolidated EBITDA of the Borrower as of the last day of the most recently ended Test Period, as reasonably determined by the Borrower at the time of such Disposition, the Borrower or any of the Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents on a cumulative basis for all such Dispositions following the Closing Date (provided that for the purposes of this clause (r) (iii),
, the following shall be deemed to be cash: (viiiA) Dispositions made the greater of the principal amount and carrying value of Indebtedness or other liabilities (other than Indebtedness or liabilities that are subordinated in right of payment to comply the Loan Obligations) contingent or otherwise of the Borrower and its Restricted Subsidiaries that are assumed by the transferee (or a third party in connection with such transfer) and pursuant to which the Borrower or such Restricted Subsidiary is released or indemnified by all applicable creditors in writing, from all liability on such Indebtedness or other liability in connection with such Disposition, (B) securities, notes or other obligations received by the Borrower or any order of its Restricted Subsidiaries from the transferee that are converted by Holdings, the Borrower or such Restricted Subsidiaries into cash or Cash Equivalents within 180 days following the closing of such Disposition, (C) Indebtedness (other than Indebtedness or liabilities that are subordinated in right of payment to the Loan Obligations) of any Governmental Authority or Restricted Subsidiary that is disposed of pursuant to such Disposition and that is no longer a Restricted Subsidiary as a result of such Disposition, to the extent that the Borrower and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Disposition and (D) aggregate non- cash consideration received by the Borrower and its Restricted Subsidiaries for all Dispositions under this clause (r) having an aggregate fair market value (determined as of the closing of the applicable requirement Disposition for which such non-cash consideration is received) not to exceed the greater of Law.(x) $150,000,000 and (y) 20.0% of Consolidated EBITDA of the Borrower for the most recently ended Test Period at any time outstanding (net of any non-cash consideration converted into cash and Cash Equivalents received in respect of any such non-cash consideration)) and (iv) the Net Cash Proceeds of such Disposition are either 157
Appears in 2 contracts
Samples: Credit Agreement (Dun & Bradstreet Holdings, Inc.), Credit Agreement (Dun & Bradstreet Holdings, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or obsolete, worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariessurplus property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries (in each case as determined by the Borrower in good faith);
(b) Dispositions of furniture, fixtures inventory and equipment immaterial assets in the ordinary course of business (including allowing any registrations or other personal property any applications for registration of any immaterial IP Rights to AINC lapse or an Affiliate thereof that is leased back under go abandoned in the ERF Programordinary course of business);
(c) Dispositions of inventory in the ordinary course of business;
(d) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and that is promptly purchased or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyproperty (which replacement property is actually promptly purchased);
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor of such property is a Loan Party (i) the transferee thereof must be a Loan Party, (ii) such Disposition shall be treated as an Investment and permitted under Section 7.02, or (iii) such Disposition shall consist of the transfer of Equity Interests in or Indebtedness of any Foreign Subsidiary to any other Foreign Subsidiary;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 7.02 (includingother than Section 7.02(g)), for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.057.04 (other than Section 7.04(g); provided that the Borrower complies with the applicable requirements of ) and Section 2.04(b7.06 and Liens permitted by Section 7.01 (other than Section 7.01(m)
(i) with respect to the Net Cash Proceeds of such Disposition);
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,Cash Equivalents;
(iig) Dispositionsleases, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (includingsubleases, but not limited tolicenses or sublicenses, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) each case in the ordinary course of business,business and which do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(vh) Dispositions transfers of cash and/or Cash Equivalents,property subject to Casualty Events;
(vi) (i) any termination Dispositions (i) of any lease accounts receivable in the ordinary course of business in connection with the collection or compromise thereof, in an amount not to exceed $1,000,000 per calendar year, (ii) of Consumer Warehouse Assets by the Consumer Warehouse Subsidiary in the ordinary course of business and (iiiii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) consumer loans and related assets by RumbleOn Finance in the ordinary course of business,;
(viij) the unwinding of any Swap Contract pursuant to its terms;
(k) Permitted Sale Leasebacks (other than any Sale Leaseback involving the Freedom Powersports Owned Real Property);
(l) Dispositions not otherwise permitted pursuant to this Section 7.05 (other than any Disposition of Freedom Powersports Owned Real Property); provided that (i) such Disposition shall be for fair market value as reasonably determined by the Borrower in good faith, (ii) the Borrower or any of its Restricted Subsidiaries shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents (provided, however, that for the purposes of this clause (l)(ii), the following shall be deemed to be cash: (A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Borrower or any of its Restricted Subsidiaries (other than Specified Debt) and the valid release of the Borrower or such Restricted Subsidiary, by all applicable creditors in writing, from all liability on such Indebtedness or other liability in connection with such Disposition, (B) securities, notes or other obligations received by the Borrower or any of its Restricted Subsidiaries from the transferee that are converted by such Borrower or any of its Restricted Subsidiaries into cash or Cash Equivalents within 180 days following the closing of such Disposition, (C) Indebtedness (other than Specified Debt) of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Disposition, to the extent that the Borrower and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with such Disposition and (D) aggregate non-cash consideration received by the Borrower and its Restricted Subsidiaries for all Dispositions under this clause (l) having an aggregate fair market value (determined as of the closing of the applicable Disposition for which such non-cash consideration is received) not to exceed $1,000,000 in any fiscal year (net of any non-cash consideration converted into cash and Cash Equivalents received in respect of any such non-cash consideration) and calculated on a Pro Forma Basis); (iii) the Borrower or the applicable Restricted Subsidiary complies with the applicable provisions of Section 2.03(b)(ii); and (iv) no Default or Event of Default exists and is continuing at the time of such Disposition and no Default for Event of Default would occur as a result of such Disposition (other than with respect to a Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default existed and was continuing or would have resulted from such Disposition);
(m) the Borrower and its Restricted Subsidiaries may surrender or waive contractual rights and settle or waive contractual or litigation claims in the ordinary course of business;
(n) Dispositions of property subject non-core or obsolete assets acquired in connection with Permitted Acquisitions;
(o) any swap of assets in exchange for services or other assets in the ordinary course of business of comparable or greater fair market value of usefulness to foreclosurethe business of the Borrower and its Restricted Subsidiaries as a whole, casualty, eminent domain or condemnation proceedings as determined in good faith by the Borrower; and
(including in lieu thereof p) the 2023 Specified Property Disposition. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than the Borrower or any similar proceeding),
(viii) Dispositions made Subsidiary Guarantor, such Collateral shall be sold free and clear of the Liens created by the Loan Documents and, if requested by the Administrative Agent, upon the certification by the Borrower that such Disposition is permitted by this Agreement, the Administrative Agent or the Collateral Agent, as applicable, shall be authorized to comply with take and shall take any actions deemed appropriate in order of any Governmental Authority or any applicable requirement of Lawto effect the foregoing.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (RumbleOn, Inc.), Term Loan Credit Agreement (RumbleOn, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, exceptexcept that the following shall be permitted:
(a) Dispositions of obsolete or obsolete, worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariessurplus property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful, or economically practicable or commercially desirable to maintain, in the conduct of the business of GBT and its Restricted Subsidiaries;
(b) Dispositions of furniture, fixtures inventory and equipment other assets in the ordinary course of business (including allowing any registrations or other personal property any applications for registration of any immaterial IP Rights (or IP Rights which are no longer economically practicable to AINC maintain) to lapse or an Affiliate thereof that is leased back under go abandoned in the ERF Programordinary course of business);
(c) Dispositions of inventory in the ordinary course of business;
(d) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and that is promptly purchased or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyproperty (which replacement property is actually promptly purchased);
(d) Dispositions of property to GBT, a Borrower or a Restricted Subsidiary; provided that if the transferor of such property is a Loan Party, (i) the transferee must be a Loan Party, or (ii) to the extent such transaction constitutes an Investment, such transaction is permitted under Section 7.02;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.037.02 (other than Section 7.02(f)), (ii) Restricted Payments permitted by Section 7.06, 7.04 and (iii) Section 7.06 and Liens permitted by Section 7.01;
(if) Any Loan Party may make a Disposition to any other Loan Party and Dispositions of Cash Equivalents;
(iig) any Subsidiary leases, subleases, non-exclusive licenses or Controlled JV Subsidiary sublicenses (other than a Loan Party) or licenses or sublicenses that are exclusive in respect of a Loan Party may make a Disposition specific field of use, specific business or specific territory where such field, business or territory is not material to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collectionGroup, settlement taken as a whole, and where GBT or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) another Restricted Subsidiary retains all other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement rights with respect to a JV Subsidiary the property licensed thereunder (includingi.e., but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of all rights other than those granted pursuant to any such non-core assets exclusive or exclusive licenses described in this clause (which may include non-core real properties) currently owned or acquired g)), in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease each case in the ordinary course of business and which do not materially interfere with the business of GBT and its Restricted Subsidiaries, taken as a whole;
(h) any Disposition of property that constitutes a Casualty Event;
(i) Dispositions of Investments in joint ventures or non-Wholly Owned Restricted Subsidiaries (other than Loan Parties) to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties or shareholders of such non-Wholly Owned Restricted Subsidiaries set forth in joint venture arrangements, shareholder agreements, Organizational Documents and similar binding arrangements relating to such joint venture or non-Wholly Owned Restricted Subsidiary;
(j) Dispositions of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof;
(k) the unwinding of any Swap Contract pursuant to its terms;
(l) Dispositions not otherwise permitted pursuant to this Section 7.05, if such Disposition shall be for Fair Market Value; provided that (i) except in the case of a Permitted Asset Swap, with respect to any Disposition pursuant to this clause (l) for a purchase price in excess of the greater of (x) $25,000,000 and (y) 5% of Consolidated EBITDA of GBT and its Restricted Subsidiaries for the Test Period most recently ended on or prior to the date such Disposition is made (measured as of such date) based upon the Section 6.01 Financials most recently delivered on or prior to such date, GBT, the Borrowers and the Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents; provided, further, that, for purposes of determining what constitutes cash and Cash Equivalents under this clause (i), (A) any liabilities (as shown on GBT’s, such Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of GBT, such Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which GBT and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing shall be deemed to be cash, (B) any securities received by GBT, such Borrower or such Restricted Subsidiary from such transferee that are converted by GBT, such Borrower or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of the applicable Disposition shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by GBT, such Borrower or such Restricted Subsidiary in respect of the applicable Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is outstanding at the time such Designated Non-Cash Consideration is received, not in excess of the greater of (x) $385,000,000 and (y) 10% of Consolidated Total Assets (measured as of the date such Disposition is made based upon the Section 6.01 Financials most recently delivered on or prior to such date) at the time of the receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash; and (ii) GBT, the Borrowers and the Restricted Subsidiaries comply with the applicable provisions of Section 2.05;
(m) GBT, the Borrowers and the Restricted Subsidiaries may (i) sell or discount without recourse accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof and (ii) sell or transfer accounts receivable so long as the Net Cash Proceeds of any sale or transfer outside of the ordinary course of business pursuant to this clause (ii) are offered to prepay the Term Loans pursuant to Section 2.05(a);
(n) Dispositions listed on Schedule 7.05;
(o) the Disposition of the Equity Interests in, Indebtedness of, or other securities issued by, an Unrestricted Subsidiary;
(p) the issuance of directors’ qualifying shares and shares issued to foreign nationals in nominal amounts as required by applicable law;
(q) sale or Disposition of immaterial Equity Interests to qualified directors where required by applicable Law with respect to the ownership of Equity Interests;
(r) any trade-in of equipment or other property or assets in exchange for other equipment or other replacement property or assets;
(s) [reserved];
(t) surrender or waiver of contractual rights and settlement or the settlement, release or surrender waiver of contractual rights or litigation claims in the ordinary course of business and consistent with past practice;
(including in tortu) forgiveness or discount of loans or advances made by a Non-Loan Party to any of GBT, any Borrower or any Subsidiary of GBT; provided that, at the time such loan or advance is forgiven or discounted, such Non-Loan Party is not a Loan Party;
(v) Dispositions of leases entered into in the ordinary course of business,, to the extent that they do not materially interfere with the business of GBT, the Borrowers and their Restricted Subsidiaries;
(viiw) the sale, forgiveness or discount of customer delinquent notes or accounts receivable in the ordinary course of business (excluding, in all events, the Disposition of accounts receivable pursuant to any factoring or receivables securitization agreement or arrangement);
(x) any Disposition not otherwise permitted pursuant to this Section 7.05 in an amount not to exceed the greater of (x) $25,000,000 and (y) 5% of Consolidated EBITDA of GBT and its Restricted Subsidiaries as of the last day of the most recently ended Test Period; and
(y) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings assets (including Equity Interests) acquired in lieu thereof connection with Permitted Acquisitions or any similar proceeding),
(viii) other Investments permitted hereunder, which assets are obsolete or not used or useful to the core or principal business of GBT and the Restricted Subsidiaries or which Dispositions are made to comply with any order obtain, or are advisable to obtain, the approval of any Governmental Authority applicable antitrust authority in connection with a Permitted Acquisition. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than any Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents and, if requested by the Administrative Agent, upon the certification by the Initial Borrower that such Disposition is permitted by this Agreement, the Administrative Agent or the Collateral Agent, as applicable, shall be authorized to take and shall take any applicable requirement actions deemed appropriate in order to effect the foregoing. Notwithstanding the foregoing or anything contrary in this Agreement, (i) (a) no Loan Party shall grant an exclusive license of Lawany Material Intellectual Property, or sell, transfer, assign or dispose of any Material Intellectual Property or its rights under the Amex Trademark License Agreement, in any such case, to any Unrestricted Subsidiary or a Restricted Subsidiary that is not a Loan Party and (b) no Restricted Subsidiary shall grant an exclusive license of any Material Intellectual Property, or sell, transfer, assign or dispose of any Material Intellectual Property or its rights under the Amex Trademark License Agreement, in any such case, to any Unrestricted Subsidiary and (ii) no Subsidiary of any Borrower may be designated as an Unrestricted Subsidiary if such Subsidiary owns, or holds an exclusive license in, any Material Intellectual Property, or has any material rights under the Amex Trademark License Agreement that are not also held by GBT or another Restricted Subsidiary; provided that, for clarity, the foregoing shall not restrict or prohibit any (A) non-exclusive licenses of Intellectual Property or (B) licenses of Intellectual Property that are exclusive in respect of a specific field of use, specific business or specific territory where such field of use, business or territory is not material to the business of the Group, taken as a whole, and where GBT or another Restricted Subsidiary retains all other rights with respect to such Intellectual Property (i.e., all rights other than those granted pursuant to any such licenses described in the foregoing clauses (A) and (B)).
Appears in 2 contracts
Samples: Amendment No. 1 (Global Business Travel Group, Inc.), Credit Agreement (Global Business Travel Group, Inc.)
Dispositions. Make any Disposition or enter into of any agreement of its property to make any Disposition, Persons that are not Restricted Companies except:
(a) Dispositions of obsolete obsolete, used, surplus or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Restricted Companies;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions pursuant to and in accordance with the Cash Management Practices and in connection with the Vault Cash Operations;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, Sections 7.02 and (iii) 7.06 and Liens permitted by Section 7.01;
(f) Dispositions by any Restricted Company of property pursuant to sale-leaseback transactions; provided that (i) Any Loan Party may make a Disposition to any other Loan Party the fair market value of all property so Disposed of shall not exceed $50,00,000 from and after the Closing Date and (ii) any Subsidiary or Controlled JV Subsidiary the purchase price for such property shall be paid to such Restricted Company for not less than 75% cash consideration;
(other than a Loan Partyg) Dispositions of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andcash and Cash Equivalents;
(h) Parent Dispositions of accounts receivable in connection with the collection or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:compromise thereof;
(i) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Restricted Companies;
(j) transfers of property subject to Casualty Events upon receipt of the Net Cash Proceeds of such Casualty Event;
(k) Dispositions in the ordinary course of business consisting of (A) receivables the abandonment of intellectual property rights which, in connection with the collectionreasonable good faith determination of the Company, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,are not material to the conduct of the business of the Restricted Companies;
(iil) Dispositions, Dispositions of Investments in Joint Ventures to the extent required by, or made pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between the joint venture parties set forth in, joint venture arrangements and similar binding arrangements (i) in substantially the form as such arrangements are in effect on the Closing Date or similar parties(ii) to the extent that the Net Cash Proceeds of such Disposition are either reinvested or applied to prepay the Term Loans pursuant to Section 2.06(b),;
(iiim) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in property to an acquisition or Unrestricted Subsidiary; provided that to the extent constituting an Investment, such Investment must be an Investment permitted pursuant to by Section 7.03 in an aggregate amount not greater than $10,000,000,7.02.
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(vn) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease real property and related assets in the ordinary course of business and in connection with relocation activities for directors, officers, members of management, employees or consultants of the Restricted Companies;
(iio) any surrender or waiver Dispositions of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) tangible property in the ordinary course of business,business as part of a like-kind exchange under Section 1031 of the Code;
(viip) voluntary terminations of Swap Contracts;
(q) Dispositions of Unrestricted Subsidiaries;
(r) Dispositions of Securitization Assets (or a fractional undivided interest therein) in a Securitization Financing permitted under Section 7.03(v); and
(s) Dispositions of property subject not otherwise permitted under this Section 7.05 by a Restricted Company to foreclosure, casualty, eminent domain Persons that are not Affiliates of the Loan Parties; provided that (i) such Disposition is made in good faith on an arms' length basis and (iii) the Net Cash Proceeds of such Disposition are either reinvested or condemnation proceedings (including in lieu thereof or any similar proceedingapplied to prepay the Term Loans pursuant to Section 2.06(b),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Law.
Appears in 2 contracts
Samples: Credit Agreement (Fidelity National Information Services, Inc.), Credit Agreement (Fidelity National Information Services, Inc.)
Dispositions. Make Convey, sell, lease, transfer, assign, or otherwise dispose of (collectively, “Transfer”), or permit any Disposition of its Subsidiaries to Transfer, all or enter into any agreement to make any Dispositionpart of its business or property, exceptexcept for:
(a) Dispositions Transfers in the ordinary course of obsolete business for reasonably equivalent consideration and/or fair market value;
(i) Transfers to a Credit Party from Borrower or worn out any of its Subsidiaries; (ii) Transfers from a Subsidiary that is not a Credit Party to another Subsidiary that is not a Credit Party and (iii) Transfers from a Credit Party to a Subsidiary that is not a Credit Party that constitutes a Permitted Investment;
(c) Transfers of property in connection with sale-leaseback transactions;
(d) Transfers of property to the extent such property is exchanged for credit against, or proceeds are promptly applied to, the purchase price of other property determined by Borrower to no longer be necessary used or useful in the business of Borrower or operations its Subsidiaries;
(e) Transfers constituting licenses and similar arrangements for the use of the property of Borrower or its Subsidiaries in the ordinary course of business and consistent with past practices;
(f) Transfers otherwise permitted by the Loan Documents;
(g) sales or JV Subsidiaries, whether now owned or hereafter acquired, discounting of delinquent accounts in the ordinary course of business;
(bh) Dispositions Transfers of furniture, fixtures and equipment or other personal property non-core patents that are not material to AINC or an Affiliate thereof that is leased back under the ERF Programbusiness of Borrower;
(ci) Dispositions Transfers associated with the making or disposition of inventory a Permitted Investment;
(j) Transfers of Inventory in the ordinary course of business;
(dk) Dispositions Transfers of equipment worn-out or non-core obsolete property; and
(l) Transfers of assets (other than Accounts and Inventory (unless such Transfer is in the ordinary course of business to the extent that (iBorrower’s business)) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided 7.1, provided, that the aggregate net book value of all such Transfers by Borrower complies with the applicable requirements of Section 2.04(b)
and its Subsidiaries, together, shall not exceed One Million Dollars (i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property1,000,000) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Lawfiscal year.
Appears in 2 contracts
Samples: Loan and Security Agreement (Mindspeed Technologies, Inc), Loan and Security Agreement (Mindspeed Technologies, Inc)
Dispositions. Make any Disposition (other than any property which, at the time of any Disposition, constitutes Unrestricted Margin Stock) or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete obsolete, surplus or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business real property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by the Company or any of its Subsidiaries to the Company or any of its Subsidiaries;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Dispositionlisted on Schedule 7.04;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01Dispositions pursuant to a Permitted Securitization;
(ig) Any Loan Party may make a Disposition Dispositions by the Company and its Subsidiaries of property pursuant to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Partysale-leaseback transactions; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
Dispositions by the Company and its Subsidiaries not otherwise permitted under this Section 7.04; provided that (i) Dispositions in at the ordinary course time of business of (A) receivables in connection with the collectionsuch Disposition, settlement no Default exists or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
would result from such Disposition and (ii) Dispositionsthe aggregate book value of all property Disposed of in reliance on this clause (h) in any period of twelve consecutive months after the Closing Date shall not exceed 10% of the book value of the total consolidated assets of the Company and its Subsidiaries (including, if the Acquisition is consummated, the Target and its Subsidiaries) in accordance with GAAP as at the beginning of such twelve-month period (based on the most recent financial statements of the Company prior to the beginning of such twelve-month period that have been delivered pursuant to Section 6.01 and, to the extent required pursuant that such financial statements do not include the consolidated assets of the Target and its Subsidiaries, calculated on a Pro Forma Basis to include (if the terms Acquisition has been consummated) the assets of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar partiesthe Target and its Subsidiaries based on the most recent available financial statements of the Target),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Law.
Appears in 2 contracts
Samples: Credit Agreement (Thermo Fisher Scientific Inc.), Credit Agreement (Thermo Fisher Scientific Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete obsolete, damaged, destroyed or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furnitureinventory in the ordinary course of business or equipment on or held for lease in the ordinary course of business, fixtures and equipment including sales, leases or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Programexchanges of such assets;
(c) Dispositions of inventory in the ordinary course of business;
(d) Dispositions of equipment or non-core assets in the ordinary course of business real property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to (i) the Parent or any wholly-owned Domestic Subsidiary of the Parent and (ii) to any Foreign Subsidiary of the Parent in an aggregate amount, when combined with the aggregate amount of Investments made pursuant to Section 7.02(c)(ii) during such fiscal year, not to exceed $10,000,000 in any fiscal year;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition7.04;
(f) To Dispositions of lease assets in lease securitization, structured finance or syndication transactions, provided that the extent constituting Dispositions, Borrower remains in compliance with its limitations under the Borrowing Base and all other terms and conditions of this Agreement;
(ig) Investments permitted Dispositions pursuant to any sale-leaseback transactions under Section 7.03(e);
(h) sales or other Dispositions of assets having a fair market value (as determined by Section 7.03, (iithe Borrower in its reasonable discretion) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01of less than $10,000,000 in the aggregate during the term of this Agreement;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) Dispositions of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary cash equivalents in the ordinary course of any Loan Party; andbusiness;
(hj) Parent leases or any Subsidiary or Controlled JV Subsidiary subleases of Parent may make or effectproperty, as applicable:
(i) Dispositions including real property, in each case in the ordinary course of business not materially interfering with the conduct of the business of the Borrower and its Subsidiaries, taken as a whole;
(Ak) receivables licenses for the use of intellectual property of the Borrower or a Subsidiary in the ordinary course of the Borrower’s or such Subsidiary’s business;
(l) Dispositions of accounts receivable in connection with the collectioncompromise, settlement or compromise collection thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,;
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (iim) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims (including in tort) in the ordinary course of business,;
(viin) to the extent constituting a Disposition, (i) Restricted Payments and (ii) Liens, Investments and fundamental changes permitted by Sections 7.01, 7.02 and 7.04, respectively;
(o) casualty events or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceedings of, any property of the Borrower or any of its Subsidiaries;
(p) Dispositions of property subject Investments in, and issuances of any Equity Interests in, joint ventures to foreclosure, casualty, eminent domain the extent required by or condemnation proceedings (including made pursuant to customary buy/sell arrangements between the joint venture parties set forth in lieu thereof or any joint venture arrangements and similar proceeding),binding arrangements; and
(viiiq) Dispositions made the assignment, cancellation, abandonment or other Disposition of (i) intellectual property or (ii) real property leases or licenses, that is, in the good faith judgment of Borrower, no longer economically practicable to maintain or useful in the conduct of the business of Borrower and the Subsidiaries, taken as a whole; provided, however, that (i) any Disposition pursuant to clauses (c), (f) or (g) shall be for fair market value and (ii) if a Disposition involves Pledged Railcars (other than a lease thereof), the Borrower shall, if required by Section 6.02(a), deliver an updated Borrowing Base Certificate and shall comply with any order of any Governmental Authority or any applicable requirement of LawSection 2.06.
Appears in 2 contracts
Samples: Credit Agreement (Greenbrier Companies Inc), Credit Agreement (Greenbrier Companies Inc)
Dispositions. Make Holdings will not, and will not permit any Disposition or enter into any agreement to Restricted Subsidiary to, make any Disposition, except:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV SubsidiariesProperty, whether now owned or hereafter acquired, in the ordinary course of business;
(b) , and Dispositions of furnitureproperty no longer used or useful in the conduct of the business of Holdings, fixtures and equipment any Borrower or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions any of inventory their respective Subsidiaries in the ordinary course of business;
(db) Dispositions of equipment or (including non-core assets exclusive licenses) of inventory and immaterial assets, in each case in the ordinary course of business business;
(c) Dispositions of Property to the extent that (i) such property Property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and Property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyProperty;
(d) Dispositions of Property by any member of the Group to any other member of the Group; provided that, if such Disposition constitutes an Investment, such Investment is permitted under Section 6.05;
(e) Dispositions of Equity Interests permitted by Section 6.03 (other than Section 6.03(d)) or Section 6.04 (other than Section 6.04(f)) and Dispositions constituted by the making of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise Investment permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition6.05;
(f) To Dispositions by Holdings and its Restricted Subsidiaries pursuant to sale-leaseback transactions, provided that the extent constituting Dispositions, aggregate fair market value of all property so Disposed of shall not exceed $50,000,000 (iin aggregate for Holdings and all Restricted Subsidiaries) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, from and (iii) Liens permitted by Section 7.01after the Closing Date;
(ig) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary Dispositions of overdue accounts receivable solely in connection with the collection or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andcompromise thereof;
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (includingoperating leases, but not limited tosubleases, buy/sell arrangements between joint venture licenses or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired sublicenses, in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease each case entered into in the ordinary course of business and which do not materially interfere with the business of Holdings and its Restricted Subsidiaries;
(iii) Dispositions of Property to the extent subject to Casualty Events;
(j) Dispositions of cash and Cash Equivalents;
(k) Dispositions of any Equity Interests in Unrestricted Subsidiaries;
(l) Dispositions of other Property by Holdings and its Restricted Subsidiaries with an aggregate fair market value (as determined in good faith by Holdings) for all such Dispositions in any fiscal year not to exceed 7.5% of the Consolidated Total Assets of Holdings and its Restricted Subsidiaries as at the last day of the immediately preceding fiscal year, with unused amounts from any fiscal year being available for additional Dispositions in the next succeeding fiscal year only (it being understood that any Disposition in any fiscal year pursuant to this clause (l) shall be deemed first to have utilized any amount carried forward from any prior year before being applied to the 7.5% limitation referred to above for such fiscal year);
(m) Dispositions of Investments in, and issuances of any Equity Interests in, joint ventures to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; and
(n) any surrender Restricted Subsidiary may liquidate or waiver dissolve if Holdings determines in good faith that such liquidation or dissolution is in its best interests and not materially adverse to the Lenders and, if such Subsidiary is a Loan Party, such Loan Party’s assets and property are transferred to another Loan Party; provided, however, that (A) any Disposition pursuant to Section 6.10(f) and Section 6.10(l) shall be for the fair market value of contractual rights or such Property at the settlementtime of such Disposition in the good faith determination of Holdings, release or surrender (B) nothing contained in this Section 6.10 shall prohibit the disposition of contractual rights or litigation claims (including in tort) mortgage loans in the ordinary course of business,
business by Genpact Mortgage Services, Inc. or any successor entity thereof upon the acquisition of Genpact Mortgage Services, Inc. and (viiC) Dispositions other than as permitted under Section 6.10(d), none of property the assets subject to foreclosure, casualty, eminent domain or condemnation proceedings (including any such Disposition shall consist of any Equity Interest in lieu thereof GII or any similar proceeding),
interest therein or (viii) Dispositions made to comply with any order except in the case of any Governmental Authority sale of all (but not part) of the Equity Interests in any Restricted Subsidiary of Holdings that is a Guarantor and the requirements of Section 5.09(b) continue to be complied with after such sale) any Equity Interest in any such Restricted Subsidiary or any applicable requirement of Lawinterest therein.
Appears in 2 contracts
Samples: Amendment No. 1 (Genpact LTD), Credit Agreement (Genpact LTD)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete obsolete, worn out, used or worn out surplus property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiaries(other than any Hotel Real Property), whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Borrower or the Restricted Subsidiaries;
(b) Dispositions of furnitureinventory, fixtures and equipment equipment, accounts receivables or other personal property to AINC or an Affiliate thereof that is leased back under current assets in the ERF Program;
(c) Dispositions ordinary course of inventory business, goods held for sale in the ordinary course of business and Immaterial Assets and termination of leases and licenses in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(ed) Dispositions of property or Equity Interests to the Borrower or any Restricted Subsidiary;
(e) to the extent constituting Dispositions, transactions permitted by (i) Section 7.01, (ii) Section 7.02 (other than 7.02(e)), (iii) Section 7.04 (other than 7.04(f)) and (iv) Section 7.06 (other than 7.06(d));
(f) [Reserved];
(g) Dispositions of any Property Level cash and Cash Equivalents;
(h) (i) leases, subleases, licenses or sublicenses (including non-exclusive licenses and sublicenses of software or other IP Rights) and terminations thereof, in each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and the Restricted Subsidiaries (taken as a whole), (ii) Dispositions of intellectual property that is no longer used or useful in the business of the Borrower and the Restricted Subsidiaries, (iii) the surrender, or waiver of contract rights or settlement, release or surrender of contract, tort or other claims;
(i) transfers of property subject to Casualty Events;
(j) Dispositions of property; provided that (i) at the time of such Disposition (other than any Hotel Properties such Disposition made pursuant to a legally binding commitment entered into at a time when no Default has occurred and is continuing), no Event of Default shall have occurred and been continuing or would result from such Disposition, (ii) the Borrower or any Restricted Subsidiary shall receive consideration at the time of such Disposition at least equal to the fair market value of the property subject to such Disposition, as such fair market value may be determined in good faith by the Borrower; (iii) the Borrower or any Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents (in each case, free and clear of all Liens at the time received); provided, however, that for the purposes of this clause (iii), the following shall be deemed to be cash: (A) any liabilities (as shown on the most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other Dispositionsthan liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Disposition or otherwise cancelled or terminated in connection with the transaction with such transferee, and, in each case, for which the Borrower and all Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by the Borrower or the applicable Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition, and (C) aggregate non-cash consideration received by the Borrower or the applicable Restricted Subsidiary having an aggregate fair market value (determined as of the closing of the applicable Disposition for which such non-cash consideration is received) not to exceed the greater of $50,000,000 and 3.0% of Total Assets; provided, further, that the requirement in this clause (iii) shall not apply to (x) Dispositions of tangible property in the ordinary course of business as part of a tax-deferred exchange (also known as a “1031 exchange” or “like-kind exchange”) or any similar provision of foreign law, or (y) otherwise to Dispositions for which all or a portion of the consideration for such Disposition consists of all or substantially all of the assets or Equity Interests of a Person engaged in a business that would be permitted by Section 7.07 and (iv) to the extent the aggregate amount of Net Proceeds received by the Borrower or a Restricted Subsidiary from Dispositions made pursuant to this Section 7.05 7.05(j) in the aggregate exceeds $5,000,000 in any fiscal year; provided, further, that after giving pro forma effect to any such Disposition of property that occurs after the end of the Covenant Restriction Period, the Consolidated Secured Net Leverage Ratio shall not exceed 4.75:1.00;
(including, for the avoidance k) Dispositions of doubt, Dispositions non-core assets acquired in excess of any monetary limitations as set forth in this Section 7.05)connection with Permitted Acquisition or other Investments; provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds aggregate amount of such Disposition;
(f) To sales shall not exceed 25% of the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party fair market value of the acquired entity or business and (ii) any each such sale is in an arm’s-length transaction and the Borrower or Restricted Subsidiary or Controlled JV Subsidiary receives at least fair market value in exchange therefor (other than a Loan Party) of a Loan Party as such fair market value may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andbe determined in good faith by the Borrower);
(hl) Parent Dispositions or any Subsidiary discounts without recourse of accounts receivable in connection with the compromise or Controlled JV Subsidiary collection thereof in the ordinary course of Parent may make or effect, as applicable:business;
(im) Dispositions of property pursuant to sale-leaseback transactions; provided that to the extent the aggregate Net Proceeds from all such Dispositions since the Closing Date, exceeds $10,000,000, such excess shall be reinvested in accordance with the definition of “Net Proceeds” or otherwise applied to prepay the Term A3 Loans in accordance with Section 2.05(b)(ii);
(n) any swap of assets in exchange for services or other assets in the ordinary course of business of (A) receivables comparable or greater value or usefulness to the business of the Borrower and its Subsidiaries as a whole, as determined in connection with good faith by the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,management of the Borrower;
(iio) Dispositionsany sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(p) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, customary buy/sell arrangements between between, the joint venture or parties set forth in joint venture arrangements and similar parties),binding arrangements;
(iiiq) Dispositions the unwinding or settlement of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,any Swap Contract;
(ivr) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease lapse or abandonment in the ordinary course of business and (ii) of any surrender registrations or waiver applications for registration of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) any IP Rights not necessary in the ordinary course conduct of business,the business of the Borrower and its Restricted Subsidiaries;
(viis) Dispositions required to be made by a Governmental Authority; and
(t) sales of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof assets received by the Company or any similar proceeding),
(viii) Dispositions made of its Restricted Subsidiaries upon the foreclosure on a Lien. To the extent any Collateral is Disposed of as permitted by this Section 7.05 to comply with any Person other than a Loan Party, such Collateral shall automatically be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent or, as applicable, the Mexican Collateral Agent shall be authorized to, and promptly upon the request of the Borrower, shall take any actions reasonably requested by the Borrower in order of any Governmental Authority or any to effect the foregoing within such time period as may be required to consummate the applicable requirement of Lawtransaction.
Appears in 2 contracts
Samples: Credit Agreement (Playa Hotels & Resorts N.V.), Credit Agreement (Playa Hotels & Resorts N.V.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete obsolete, surplus, damaged or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business real property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by any Subsidiary to the Borrower or to a wholly-owned Subsidiary; provided that if the transferor of such property is a Guarantor, the transferee thereof must either be the Borrower or a Guarantor;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition7.04;
(f) To the extent constituting Dispositions, (i) Investments Borrower or any of its Subsidiaries may make any Investment permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.017.02;
(ig) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or exclusive licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease IP Rights in the ordinary course of business and substantially consistent with past practice;
(iih) any surrender or waiver Dispositions by the Borrower and its Subsidiaries of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) defaulted receivables to a collection agency in the ordinary course of their business,; and
(viii) Dispositions by the Borrower and its Subsidiaries not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition, no Default shall exist or would result from such Disposition and (ii) the aggregate book value of all property subject Disposed of in reliance on this clause (h) in any fiscal year shall not exceed $500,000; provided, however, that any Disposition pursuant to foreclosureclauses (a) through (i) shall be for fair market value; and, casualtynotwithstanding anything in this Section 7.05, eminent domain Section 7.02, Section 7.03, Section 7.04 or condemnation proceedings (elsewhere in this Agreement to the contrary, after the Closing Date in no event shall aggregate Investments made in, intercompany Indebtedness incurred by, and Dispositions to, all Subsidiaries that are not Loan Parties, including Investments as a result of Acquisitions, Investments in lieu thereof or any similar proceeding),
(viii) Foreign Subsidiaries, intercompany Indebtedness incurred by Foreign Subsidiaries, and Dispositions made to comply with any order Foreign Subsidiaries, exceed 5% of any Governmental Authority or any applicable requirement of LawConsolidated Net Worth.
Appears in 2 contracts
Samples: Credit Agreement (Exponential Interactive, Inc.), Credit Agreement (Exponential Interactive, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(ai) any Group Company may sell Inventory in the ordinary course of business;
(ii) Dispositions of obsolete obsolete, worn out, surplus, damaged, idled, unmerchantable or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesotherwise unsaleable assets, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(diii) Dispositions of equipment or non-core assets in the ordinary course of business real property to the extent that (iA) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (iiB) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(eiv) Dispositions of Equity Interests of property by any Property Level Subsidiaries, Subsidiary to any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05)Loan Party or to a Wholly-Owned Subsidiary; provided that if the transferor of such property is a Loan Party, the transferee thereof must be a Loan Party except that Dispositions of assets (other than Accounts or Inventory as such terms are defined in the Security Agreement) by any Loan Party to any Subsidiary which is not a Loan Party shall be permitted in an aggregate amount not to exceed $25,000,000;
(v) Dispositions permitted by Sections 7.01, 7.03, 7.04 and 7.06;
(vi) any Borrower complies with the and its Subsidiaries may liquidate, use or sell cash, Cash Equivalents and Foreign Cash Equivalents;
(vii) Holdings or any Subsidiary of any Borrower may sell or dispose of Equity Interests in Holdings or such Subsidiary to qualify directors where required by applicable Law or to satisfy other requirements of Section 2.04(b)
(i) applicable Law with respect to the ownership of Equity Interests in Foreign Subsidiaries;
(viii) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Group Companies;
(ix) transfers of property subject to Casualty Events upon receipt of the Net Cash Proceeds of such DispositionCasualty Event;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(ix) Dispositions in the ordinary course of business consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination of the applicable Borrower, are not material to the conduct of the business of the Group Companies;
(xi) Dispositions by the Borrowers and their Subsidiaries not otherwise permitted under this Section 7.05; provided that (A) receivables in connection with at least 75% of the collection, settlement consideration therefor is cash or compromise thereof (including any discount and/or forgiveness thereof), Cash Equivalents; (B) equipmentin the case of Dispositions by the Loan Parties, the aggregate fair market value of all assets sold or otherwise disposed of in all such transactions in reliance on this clause (xi) shall not exceed (I) the greater of (1) $50,000,000 and (2) 3.5% of Consolidated Total Assets as of the date of such Disposition in any fiscal year of Holdings or (II) the greater of (1) $150,000,000 and (2) 10% of Consolidated Total Assets on the date of such Disposition, in the aggregate from and after the Effective Date; and (C) other current assets no Event of Default shall have occurred and be continuing immediately before or (D) immaterial assets,immediately after giving effect to such transaction;
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iiixii) Dispositions of non-core assets Receivables pursuant to Factoring Arrangements, so long as (A) such Receivables are sold at no less than the fair market value thereof (which may include non-core real propertiesa discount customary for transactions of this type) currently owned and at least 90% of the consideration therefor is cash or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount Cash Equivalents and (B) any such Factoring Arrangement constitutes a “true sale” transaction and not greater than $10,000,000,a financing transaction;
(ivxiii) leases and/or licenses transfers of Hotel Properties condemned real property to the respective Governmental Authority that has condemned the same (whether by deed in lieu of condemnation or otherwise), and assets related thereto transfers of personal properties that have been subject to a casualty to the respective insurer of such property or its designee as part of an insurance settlement;
(includingxiv) cancellations of intercompany Indebtedness among Holdings and its Subsidiaries;
(xv) the Lead U.S. Borrower may sell the Equity Interest, without limitationor all or substantially all of the assets, intellectual propertyof Masonite (Africa) Limited;
(xvi) sales or dispositions of Equity Interests in existing Joint Ventures;
(xvii) the surrender or waiver of contract rights or settlement, release or surrender of a contract, tort or other litigation claim in the ordinary course of business,; and
(vxviii) Dispositions the sale, transfer or disposition of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease the real property located in the ordinary course of business Easton, Hearne, Watseka, Los Banos, Sacramento, Farmington Hills, South Bend, Astatula, Ukaih, Limon/Guapiles, Hungary, Costa Rica and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of LawHedingham.
Appears in 2 contracts
Samples: Credit Agreement (Masonite International Corp), Credit Agreement (Masonite International Corp)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business to the extent that (i) such property equipment is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and equipment or (ii) (A) the proceeds of such Disposition are reasonably promptly applied paid not less than 75% in cash, (B) within 180 days of such Disposition, the Parent or the applicable Restricted Subsidiary has obtained a written replacement order to replace such equipment with replacement equipment and (C) if the equipment subject to such Disposition was Collateral, such replacement equipment is or becomes Collateral subject to a perfected Lien in favor of the Administrative Agent for the benefit of the Secured Parties substantially contemporaneously with the consummation of such replacement;
(d) Dispositions of property by any Subsidiary to the purchase price Parent or to a wholly-owned Restricted Subsidiary; provided that if the transferor of such replacement propertyproperty is a Loan Party or, prior to the C&J Joinder Date, C&J or any of its Subsidiaries, the transferee thereof must be a Loan Party; provided further that no Disposition of the Equity Interests in any Restricted Subsidiary that does not constitute an Excluded Subsidiary on the Closing Date shall be permitted under this clause (d) if the result of such transaction is to cause such Restricted Subsidiary to become an Excluded Subsidiary if such Person was not an Excluded Subsidiary or an Immaterial Subsidiary immediately prior to giving effect thereto;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition7.04;
(f) To sales or non-exclusive grants of licenses or sublicenses to use the patents, trade secrets, know-how and other intellectual property, and licenses, leases or subleases of other assets, of the Parent or any wholly-owned Restricted Subsidiary to the extent constituting Dispositionsnot materially interfering with the business of the Parent or any Restricted Subsidiary;
(g) Dispositions by the Parent and its Restricted Subsidiaries not otherwise permitted under this Section 7.05; provided that the aggregate book value of all property Disposed of in reliance on this clause (g) in any fiscal year shall not exceed as of the date of any such Disposition an amount equal to 5.0% of Consolidated Tangible Assets of the Parent and its Restricted Subsidiaries as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 6.01(a) or 6.01(b);
(h) so long as no Default shall occur and be continuing, (i) Investments the grant of any option or other right to purchase any asset in a transaction that would be permitted by under the provisions of Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.017.05(g);
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include acquired in a Permitted Acquisition by the Parent or any of its Restricted Subsidiaries within 18 months of such Permitted Acquisition; provided that the aggregate book value of such non-core real properties) currently owned or assets does not exceed 15.0% of the Consolidated Tangible Assets acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,such Permitted Acquisition;
(ivj) leases and/or licenses Dispositions of Hotel Properties light vehicles (i.e. cars and assets related thereto (including, without limitation, intellectual propertypick-up trucks but not heavy trucks or rigs) in the ordinary course of business,;
(vk) any settlement of or payment in respect of, or series of settlements or payments in respect of, any property or casualty insurance claim or any condemnation proceeding relating to any asset of the Parent or any of its Restricted Subsidiaries;
(l) Dispositions of cash and/or Cash Equivalents,property constituting the making of Investments permitted under Section 7.03 other than Section 7.03(n) and Dispositions of property constituting the making of Restricted Payments permitted by Section 7.06;
(vim) (i) any termination the sale of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) past due accounts receivable in the ordinary course of business,; and
(viin) Dispositions of property subject occurring in a single transaction or series of substantially related transactions the fair market value of which does not exceed $5,000,000. provided, however, that any Disposition pursuant to foreclosure, casualty, eminent domain or condemnation proceedings Section 7.05(a) through Section 7.05(l) (including in lieu thereof or other than Dispositions to any similar proceeding),
(viiiLoan Party) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Lawshall be for fair market value.
Appears in 2 contracts
Samples: Credit Agreement (C&J Energy Services Ltd.), Credit Agreement (C&J Energy Services Ltd.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of used, worn out, obsolete or worn out surplus property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiaries, whether now owned or hereafter acquired, any Subsidiary of the Borrower in the ordinary course of business that is, in the reasonable judgment of the Borrower, no longer economically practicable to maintain or useful in the conduct of its business;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(c) Dispositions by any Subsidiary of all or any of its business, property or assets to the Borrower or any Wholly Owned Subsidiary;
(d) Dispositions of equipment or non-core assets in the ordinary course of business to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property mergers and acquisitions permitted by Section 6.03; and (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertytransfers or dispositions permitted by Section 6.03(c);
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted licenses or sublicenses by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effectintellectual property and general intangibles, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual any proprietary software of the Borrower or any Subsidiary, and licenses, leases or subleases by the Borrower or any Subsidiary of other property) , in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease each case in the ordinary course of business and which do not materially interfere with the business of the Borrower or any of its Subsidiaries;
(iif) any surrender sale or waiver other disposition of contractual rights cash or Eligible Investments; provided, however, that, in the settlementcase of Eligible Investments, release such sale or surrender disposition shall be made solely for and in connection with the Borrower’s or any Subsidiary’s, as applicable, investment portfolio and in accordance with the Investment Policy of contractual rights the Borrower or litigation claims such Subsidiary, as applicable;
(including in tortg) ceding of insurance or reinsurance in the ordinary course of business,;
(viih) other Dispositions of any assets of the Borrower or any of its Subsidiaries not otherwise permitted pursuant to the foregoing in this Section 6.05; provided that (A) no Default then exists or would result therefrom and (B) such assets to be Disposed pursuant to this Section 6.05(h), together with all assets of the Borrower and its Subsidiaries previously Disposed pursuant to this Section 6.05(h), do not in the aggregate constitute a material portion of the assets of the Borrower and its Subsidiaries;
(i) Dispositions of property subject Investments made in compliance with Section 6.04; and
(j) the dissolution, liquidation and winding-up of any Subsidiary in accordance with Requirements of Law; provided, that, prior thereto or in connection therewith, such Subsidiary makes a Disposition of all or substantially all of the assets to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof the Borrower or any similar proceedingWholly Owned Subsidiary as permitted under Sections 6.03(c) or 6.05(c),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Law.
Appears in 2 contracts
Samples: Credit Agreement (National General Holdings Corp.), Credit Agreement (Amtrust Financial Services, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of damaged, negligible, surplus, obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program[reserved];
(c) Dispositions of inventory in the ordinary course of business;
(d) Dispositions of equipment leases or non-core assets subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of the Borrower and its Restricted Subsidiaries;
(d) the sale or other Disposition of Cash Equivalents;
(e) Dispositions of accounts receivable and related assets of the type specified in the definition of Qualified Receivables Transaction (or a fractional undivided interest therein) by a Receivables Subsidiary in a Qualified Receivables Transaction;
(f) Dispositions of products or services in the ordinary course of business or accounts receivables in connection with the collection or compromise thereof (including at a discount);
(g) Dispositions of equipment or real property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(eh) Dispositions of property (including Equity Interests of Subsidiaries) by the Borrower or any Restricted Subsidiary to the Borrower, a Subsidiary Guarantor or Qualified Subsidiary;
(i) Dispositions permitted by Section 7.04;
(j) licensing of IP Rights in the ordinary course of business or in accordance with industry practice;
(k) Dispositions of assets as a result of a foreclosure by the Borrower or any Restricted Subsidiary on any secured Investment or other transfer of title with respect to any secured Investment in default; and
(l) Dispositions by the Borrower and its Restricted Subsidiaries not otherwise permitted under this Section 7.05; provided that at the time of such Disposition, (i) no Default shall have occurred and be continuing, (ii) not less than 75% of the purchase price for such asset shall be paid to the Borrower or such Restricted Subsidiary in cash, (iii) the aggregate Fair Market Value of all property Disposed of in reliance on this Section 7.05(l) in any fiscal year of the Borrower shall not exceed $15,000,000 (provided that any amount so unused in any such fiscal year may be carried forward to any succeeding fiscal year so long as the aggregate Fair Market Value of any assets so Disposed in any such fiscal year pursuant to this Section 7.05(l) after giving effect to such carryover shall not exceed $25,000,000) and (iv) the Net Cash Proceeds thereof are applied in accordance with Section 2.05(b)(ii); provided that each of the following shall be deemed to be cash for the purposes of clause (ii) above:
(i) Cash Equivalents;
(ii) any liabilities (as shown on the Borrower’s most recent consolidated balance sheet) of the Borrower or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to any of the Loan Obligations) that are assumed by the transferee of any such assets pursuant to an agreement that releases the Borrower or such Restricted Subsidiary from further liability;
(iii) any securities, notes or other obligations received by the Borrower or any Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash within 180 days of receipt, to the extent of the cash received in that conversion; and
(iv) any Designated Noncash Consideration received by the Borrower or a Restricted Subsidiary, the Fair Market Value of which, when taken together with all other Designated Noncash Consideration received pursuant to this clause (iv) does not exceed the greater of $15,000,000 and 2.0% of Total Assets at the time of receipt since the Signing Date, with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value;
(m) Dispositions of Equity Interests of any Property Level Subsidiariesa Qualified Subsidiary to Strategic Investors in connection with the start-up of such Qualified Subsidiary;
(n) so long as no Default shall have occurred and be continuing, any Hotel Properties and other DispositionsDisposition of Equity Interests held by the Borrower or a Restricted Subsidiary in a Qualified Subsidiary in exchange for cash, Cash Equivalents or Equity Interests in each caseanother Qualified Subsidiary, not otherwise permitted by this Section 7.05 (including, for the avoidance so long as any such cash or Cash Equivalents received in such exchange are used within 365 days of doubt, Dispositions such Disposition to acquire Equity Interests in excess of any monetary limitations as set forth in this Section 7.05)a Qualified Subsidiary; provided that the Borrower complies with the applicable requirements requirement to so acquire such Equity Interests of Section 2.04(b)
(i) a Qualified Subsidiary shall be deemed to be satisfied with respect to the any Net Cash Proceeds from the sale or issuance of Equity Interests of a Qualified Subsidiary to the extent an amount equal to such Net Cash Proceeds was used to purchase Equity Interests in a Qualified Subsidiary within 365 days prior to the receipt of such DispositionNet Cash Proceeds (it being understood that the term “Net Cash Proceeds” as used in this clause shall not give effect to the first and second provisos in clause (a) of the definition of “Net Cash Proceeds”);
(fo) To any Intercompany Loan Refinancing if and to the extent constituting Dispositions, (i) Investments permitted by the proceeds thereof are applied in accordance with Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.012.05(b)(ii);
(ip) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual contract rights or the settlement, release or surrender of contractual rights contract, tort or litigation other claims (including in tort) in the ordinary course of business,any kind;
(viiq) Dispositions any sale or Disposition deemed to occur in connection with creating or granting any Lien pursuant to Section 7.01 (but not the sale or other Disposition of the property subject to foreclosure, casualty, eminent domain such Lien); and
(r) the assignment or condemnation proceedings (including in lieu thereof other Disposition to Intercompany Notes Holdings by the Borrower or any similar proceedingRestricted Subsidiary of such Person’s right, title and interest in and to the indebtedness and obligations of certain Qualified Subsidiaries in an aggregate principal amount of up to $28,000,000 arising pursuant to the Intercompany Notes further described in the Intercompany Note Disposition Agreement (such assignment or other Disposition, the “Intercompany Note Disposition”),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Law.
Appears in 2 contracts
Samples: First Lien Credit Agreement (American Renal Associates Holdings, Inc.), First Lien Credit Agreement (American Renal Associates Holdings, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) (x) Dispositions of obsolete obsolete, damaged, worn out, used or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariessurplus property, whether now owned or hereafter acquired, in the ordinary course of business;
, (by) Dispositions of furniture, fixtures property no longer used or useful in the conduct of the business of the Parent Borrower or any Restricted Subsidiary and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(cz) Dispositions to landlords of inventory improvements made to leased real property pursuant to customary terms of leases entered into in the ordinary course of business;
(db) Dispositions of equipment or non-core assets (i) inventory, goods held for sale in the ordinary course of business and (ii) immaterial assets (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned) in the ordinary course of business, including but not limited to Dispositions of medical devices or other medical products pursuant to a voluntary or mandatory recall thereof or of assets in connection with the consolidation of billing centers;
(c) Dispositions of property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property to the Parent Borrower or any Restricted Subsidiary; provided that if the transferor of such property is a Loan Party (i) the transferee thereof must be a Loan Party, (ii) such Disposition is for cash and shall be for no less than the fair market value of such property at the time of such Disposition (or any promissory note or other non-cash consideration received in respect thereof must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xviii))) or a Permitted Investment or (iii) if such transaction constitutes an Investment, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xviii)) or a Permitted Investment;
(e) Dispositions that otherwise constitute a Permitted Investment, are permitted by Section 7.04 (other than Section 7.04(h)) or otherwise constitute a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xviii)) and Liens permitted by Section 7.01 (other than Section 7.01(l)(ii));
(f) Dispositions of Equity Interests property pursuant to sale-leaseback transactions; provided that to the extent the aggregate Net Proceeds from all such Dispositions since the Closing Date exceeds $40,000,000, such excess shall be reinvested in accordance with the definition of “Net Proceeds” or otherwise applied to prepay Loans in accordance with Section 2.05(b)(ii)
(g) Dispositions of cash and Cash Equivalents;
(h) (i) leases, subleases, licenses or sublicenses (including agreements under which the Parent Borrower or any Property Level Restricted Subsidiary has granted rights to end users to access and use the Parent Borrower’s or any Restricted Subsidiary’s products, technologies or services), in each case in the ordinary course of business and which do not materially interfere with the business of the Parent Borrower and the Restricted Subsidiaries, taken as a whole, and (ii) the abandonment of intellectual property rights (A) in the ordinary course of business or which in the reasonable good faith determination of the Administrative Borrower are not material to the conduct of the business of the Parent Borrower and the Restricted Subsidiaries taken as a whole or (B) that are no longer economically practicable or commercially reasonable to maintain;
(i) transfers of property subject to Casualty Events;
(j) Dispositions of property; provided that (i) at the time of such Disposition (other than any Hotel Properties such Disposition made pursuant to a legally binding commitment entered into at a time when no Default has occurred and is continuing), no Event of Default shall have occurred and be continuing or would result from such Disposition and (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $8,500,000, the Parent Borrower or any Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents (free and clear of all Liens at the time received (other Dispositionsthan nonconsensual Liens permitted by Section 7.01 and Liens permitted by Section 7.01(a), clause (iii) of Section 7.01(k), Section 7.01(m), clauses (i) and (ii) of Section 7.01(r), Section 7.01(v), Section 7.01(bb), Section 7.01(cc), Section 7.01(dd), Section 7.01(gg), Section 7.01(ii), Section 7.01(jj) and Section 7.01(ll) and in each case, any permitted modifications, replacements, renewals or extensions of such Liens pursuant to Section 7.01(aa))); provided, however, that for the purposes of this clause (j)(ii), the following shall be deemed to be cash: (A) any liabilities (as shown on the Parent Borrower’ most recent balance sheet provided hereunder or in the footnotes thereto) of the Parent Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that (i) are assumed by the transferee with respect to the applicable Disposition or (ii) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Parent Borrower or any of its Restricted Subsidiaries) and, in the case of clause (i), for which each Parent Borrower and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities, notes or other obligations or assets received by the Parent Borrower or the applicable Restricted Subsidiary from such transferee that are converted by the Parent Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) in connection with the applicable Disposition, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to the Parent Borrower or any of its Restricted Subsidiaries), to the extent that the Parent Borrower and each of its Restricted Subsidiaries are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition and (D) aggregate non-cash consideration received by the Parent Borrower or the applicable Restricted Subsidiary having an aggregate fair market value, taken together with all other non-cash consideration received pursuant to this clause (D) (determined as of the closing of the applicable Disposition for which such non-cash consideration is received) not to exceed the greater of $73,500,000 and 35.0% of Trailing Four Quarter Consolidated EBITDA as determined at the time of such applicable Dispositions (net of any such non-cash consideration subsequently converted into cash and Cash Equivalents);
(k) to the extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by the Parent Borrower or any of the Restricted Subsidiaries that is not in contravention of Section 7.07;
(l) Dispositions or discounts, without recourse of accounts receivable or notes receivable in connection with the collection or compromise thereof in the ordinary course of business or the conversion of accounts receivable to notes receivable in the ordinary course of business;
(m) Dispositions of ABL Priority Collateral not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Dispositionextent the net proceeds thereof are applied to repay or cash collateralize the ABL Obligations;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (iin) any Subsidiary swap of assets in exchange for services or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions assets in the ordinary course of business of (A) receivables comparable or greater value or usefulness to the business of the Parent Borrower and the Subsidiaries as a whole, as determined in connection with good faith by the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,Administrative Borrower;
(iio) Dispositionsany sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(p) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, customary buy/sell arrangements between between, the joint venture or parties set forth in joint venture arrangements and similar parties),binding arrangements;
(iiiq) Dispositions the unwinding of non-core assets (which may include non-core real properties) currently owned any Swap Contract or acquired in an acquisition or Investment any Cash Management Services permitted pursuant to under Section 7.03 in an aggregate amount not greater than $10,000,000,7.03(l);
(ivr) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease lapse or abandonment in the ordinary course of business of any registrations or applications for registration of any immaterial IP Rights;
(s) any Disposition of Securitization Assets to a Securitization Subsidiary in connection with a Qualified Securitization Financing;
(t) Dispositions by any Loan Party of any wholly-owned Restricted Subsidiary of the type described in clauses (d) and (e) of the definition of Excluded Subsidiary to the extent consisting of contributions or other Dispositions of Equity Interests in other wholly-owned Restricted Subsidiaries of the type described in clauses (d) and (e) of the definition of Excluded Subsidiary to such wholly-owned Restricted Subsidiary;
(u) Dispositions (i) of non-core assets acquired in connection with Permitted Acquisitions or any other acquisition or Investment permitted under this Agreement; provided that the aggregate amount of such sales shall not exceed 25% of the fair market value of the acquired entity or business, (ii) made to satisfy the Parent Borrower’s or any surrender Restricted Subsidiary’s obligations under any non-compete agreement or waiver (ii) made to obtain the approval of contractual rights any anti-trust authority;
(v) Dispositions set forth on Schedule 7.05;
(w) any issuance of Equity Interests in any Restricted Subsidiary to any officer, director, consultant, advisor, service provider or employee of the settlement, release Borrowers or surrender any Restricted Subsidiary in respect of contractual rights services provided to the Borrowers or litigation claims (including in tort) a Restricted Subsidiary in the ordinary course of business,business approved by the Board of Directors of the Borrower;
(viix) cancellation of Indebtedness owing to the Parent Borrower or any Restricted Subsidiary from members of management of the Parent Borrower, any of the Parent Borrower’s direct or indirect parent companies or any of the Parent Borrower’s Restricted Subsidiaries in connection with the repurchase or redemption of Equity Interests of any of the Parent Borrower’s direct or indirect parent companies;
(y) Dispositions of property subject to foreclosure, casualty, eminent domain assets not constituting Collateral;
(z) any Borrower and any Restricted Subsidiary may (i) terminate or condemnation proceedings (including in lieu thereof otherwise collapse its cost-sharing agreements with any Borrower or any similar proceeding),Subsidiary and settle any crossing payments in connection therewith or (ii) surrender, terminate or waive contractual rights and settle or waive contractual or litigation claims; and
(viiiaa) Dispositions made in an amount not to comply with exceed the greater of $5,250,000 and 2.5% of Trailing Four Quarter Consolidated EBITDA in the aggregate in any order fiscal year; provided that any Disposition of any Governmental Authority property pursuant to this Section 7.05 (except pursuant to Sections 7.05(a), (d), (e), (h), (i), (l), (p), (q), (r), (s), (v), (w), (x), (z) and (aa) and except for (x) Dispositions from the Parent Borrower or a Guarantor to the Parent Borrower or a Guarantor or (y) Dispositions from any wholly-owned Non-Loan Party to any other wholly-owned Non-Loan Party) shall be for no less than the fair market value of such property at the time of such Disposition. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than the Parent Borrower or any applicable requirement of Lawits Restricted Subsidiaries, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and, if requested by the Administrative Agent, upon the certification by the Administrative Borrower that such Disposition is not prohibited by this Agreement, the Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Option Care Health, Inc.), First Lien Credit Agreement (Option Care Health, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiaries, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furniture, fixtures and equipment or other personal real property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(d) Dispositions of equipment or non-core assets in the ordinary course of business to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyproperty or (iii) such property is no longer used or useful in the ordinary course of business;
(b) Dispositions of property by any Subsidiary to the Borrower or to a wholly-owned Subsidiary; provided that if the transferor of such property is a Restricted Subsidiary, the transferee thereof must either be the Borrower or a Restricted Subsidiary; provided, further that if the transferor is a Guarantor, the transferee must be either the Borrower or a Guarantor;
(c) Dispositions permitted by Section 7.04;
(d) Dispositions not otherwise permitted under clauses (a), (b) or (c) above, provided that (i) no Event of Default has occurred or would result therefrom, and (ii) the purchase price of the asset being Disposed of is payable in not less than 75% cash; provided, however, that any Disposition pursuant to Section 7.05(d) shall be for the fair market value of such asset;
(e) Dispositions of Equity Interests property, whether now owned or hereafter acquired, that is obsolete, worn out, damaged, surplus or otherwise no longer used or useful in the ordinary course of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Dispositionbusiness;
(f) To Dispositions of Cash Equivalents, inventory or other current assets in the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01ordinary course of business;
(ig) Any Loan Party may make a Disposition to any sales or other Loan Party Dispositions without recourse and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables overdue or disputed accounts receivable in connection with the collection, settlement compromise or compromise thereof (including any discount and/or forgiveness collection thereof), (B) equipment, (C) other current assets or (D) immaterial assets,;
(iih) Dispositions, to the extent required pursuant to the terms licensing or sublicensing of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions intellectual property rights and other transfers of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) copyrighted material in the ordinary course of business,; and
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) the settlement of tort or other litigation claims, provided that if any termination such settled claim shall have a value or potential claim in excess of $5,000,000, the board of directors or similar governing entity of the Borrower determines it to be fair and reasonable in light of the circumstances; and provided, further, that no Disposition will be permitted of any lease in of the ordinary course of business following assets: (A) Newsday or its related website xxx.xxxxxxx.xxx, and (iiB) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in Cablevision Notes except to the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Lawextent permitted under Section 7.18.
Appears in 2 contracts
Samples: Credit Agreement (Cablevision Systems Corp /Ny), Credit Agreement (CSC Holdings Inc)
Dispositions. Make The Borrower will not, and will not permit any Disposition or enter into of its Restricted Subsidiaries to, Dispose of any agreement to make any Dispositionof its assets, except:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, or, in the ordinary course case of businessany Restricted Subsidiary, issue or sell any shares of such Subsidiary’s Capital Stock to any Person other than the Borrower or another Restricted Subsidiary (or to qualify directors if required by applicable Law), except:
(a) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, EVO Merchant Services, LLC may sell its ownership interest in (x) Federated Payment Systems, LLC and (y) US Merchant Systems, LLC;
(b) Dispositions so long as (x) no Default or Event of furnitureDefault has occurred and is continuing at the time such sale is made, fixtures or would result therefrom and equipment (y) the Borrower and the Restricted Subsidiaries demonstrate compliance with the financial covenants set forth in Article VI calculated on a pro forma basis after giving effect thereto, the sale or other personal property Disposition of such assets (which sale or other Disposition shall be for cash and for fair market value) in an aggregate amount not to AINC exceed (A) $10,000,000 in any Fiscal Year and (B) $45,000,000 over the term of the Agreement; provided that for purposes of this clause (b) only, any liabilities of the Borrower or an Affiliate thereof a Restricted Subsidiary that is leased back under are assumed by the ERF Programtransferee with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly released, shall be deemed to be cash;
(c) Dispositions of inventory in the ordinary course of business;
(d) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions (i) permitted by Section 7.3 or (ii) made to effect an Investment permitted under Section 7.4 or a Restricted Payment permitted under Section 7.5;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements and its Restricted Subsidiaries of property pursuant to any Sale and Leaseback Transaction permitted under Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition7.9;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary licensing or Controlled JV Subsidiary (other than a Loan Party) sublicensing of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions IP Rights in the ordinary course of business on customary terms;
(g) Dispositions of (A) receivables in connection with the collection, settlement or compromise thereof Investments (including any discount and/or forgiveness thereof), (BCapital Stock) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, in joint ventures that are not Loan Parties to the extent required by, or made pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, customary buy/sell arrangements between between, the joint venture or parties set forth in joint venture arrangements and similar parties),binding arrangements;
(iiih) the Disposition, within one (1) year of such acquisition, of assets acquired pursuant to a permitted acquisition which assets are not used or useful to the core or principal business of the Borrower and its Restricted Subsidiaries; and
(i) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired Capital Stock in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of LawUnrestricted Subsidiaries.
Appears in 2 contracts
Samples: Credit Agreement (EVO Payments, Inc.), Credit Agreement and Security Agreement (EVO Payments, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete obsolete, damaged, worn out, used or worn out surplus property or property determined by Borrower to no longer be necessary in the business or operations (including for purposes of Borrower or its Subsidiaries or JV Subsidiariesrecycling), whether now owned or hereafter acquired, acquired and Dispositions of property of the Borrower and the Restricted Subsidiaries that is no longer used or useful in the conduct of the business or economically practicable or commercially desirable to maintain;
(b) Dispositions of property in the ordinary course of business;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(d) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property; provided that to the extent the property being transferred constitutes Collateral such replacement property shall constitute Collateral;
(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that the aggregate amount of Disposition by a Loan Party to a Non-Loan Party shall not exceed, when combined with Investments made by a Loan Party to a Non-Loan Party pursuant to Section 7.02(a)), the greater of (i) $50,000,000 and (ii) 25% of TTM Consolidated Adjusted EBITDA;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 7.02 (includingother than Section 7.02(o)), for the avoidance Section 7.04 (other than Section 7.04(h)) and Section 7.06 (other than Section 7.06(d)) and Permitted Liens;
(f) Dispositions of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05)property pursuant to Sale Leaseback Transactions; provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect no Event of Default exists or would result therefrom (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default exists) and (ii) such Disposition shall be for no less than the Net Cash Proceeds fair market value of such property at the time of such Disposition;
(fg) To Dispositions of cash and Cash Equivalents; provided that such Disposition shall be for no less than the extent constituting Dispositionsfair market value of such property at the time of such Disposition;
(h) leases, subleases, licenses or sublicenses (i) Investments permitted by Section 7.03including the provision of software under an open source license), (ii) which do not materially interfere with the business of the Borrower and the Restricted Payments permitted by Section 7.06Subsidiaries, and (iii) Liens permitted by Section 7.01taken as a whole; provided that such Disposition shall be for no less than the fair market value of such property at the time of such Disposition; provided no exclusive license of Material Intellectual Property to an Unrestricted Subsidiary shall be permitted;
(i) Any Loan Party may make a Disposition Dispositions of property subject to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andCasualty Events;
(hj) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicableDispositions; provided that:
(i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Default exists), no Default shall exist or would result from such Disposition;
(ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of the greater of $10,000,000 and 5% of TTM Consolidated Adjusted EBITDA as of the date of the Disposition, the Borrower or any of the Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents; provided however, that for the purposes of this clause (ii) each of the following shall be deemed to be cash;
(A) any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed or extinguished by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing;
(B) any milestone payments to be paid in cash at a later date pursuant to the definitive agreements with respect to such Disposition;
(C) any securities received by the Borrower or Restricted Subsidiary from such transferee that are converted by the Borrower or Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within one hundred and eighty days following the closing of the applicable Disposition; and
(D) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (D) that is at that time outstanding, not in excess of the greater of (I) $10,000,000 and (II) 5% of TTM Consolidated Adjusted EBITDA as of the date of the Disposition, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(iii) such Disposition shall be for no less than the fair market value of such property at the time of such Disposition (this clause (j), the “General Asset Sale Basket”);
(k) Dispositions of Investments in Joint Ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the Joint Venture parties set forth in joint venture arrangements and similar binding arrangements;
(l) Dispositions or discounts of accounts receivable and related assets in connection with the collection, compromise or factoring thereof;
(m) Dispositions (including issuances or sales) of Equity Interests in, or Indebtedness owing to, or of other securities of, an Unrestricted Subsidiary to non-Affiliate parties for fair market value (other than any Unrestricted Subsidiaries all or substantially all of the assets of which consist of cash or Cash Equivalents received from an Investment by the Borrower and/or any Restricted Subsidiary into it);
(n) Dispositions to the extent of any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by the Borrower or any of the Restricted Subsidiaries to the extent allowable under Section 1031 of the Code (or comparable or successor provision);
(o) Dispositions in connection with the unwinding of any Hedge Agreement;
(p) Dispositions by the Borrower or any Restricted Subsidiary of assets in connection with the closing or sale of a facility in the ordinary course of business of the Borrower and its Restricted Subsidiaries, which consist of fee or leasehold interests in the premises of such facility, the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such facility; provided that as to each and all such sales and closings, (Ai) receivables no Event of Default shall result therefrom and (ii) such sale shall be on commercially reasonable prices and terms in a bona fide arm’s-length transaction;
(q) Dispositions (including bulk sales) of the inventory of a Loan Party not in the ordinary course of business in connection with facility closings, at arm’s length;
(r) [reserved];
(s) the collectionlapse, settlement abandonment or compromise thereof discontinuance of the use or maintenance of any Intellectual Property if previously determined by the Borrower or any Restricted Subsidiary in its reasonable business judgment that such lapse, abandonment or discontinuance is desirable in the conduct of its business;
(including t) Disposition of any discount and/or forgiveness thereof), property or asset with a fair market value not to exceed with respect to any transaction the greater of (Bi) equipment, (C) other current assets or (D) immaterial assets,
$10,000,000 and (ii) Dispositions5% of TTM Consolidated Adjusted EBITDA as of the date of the Disposition; provided that such Dispositions made under this clause (t) may not exceed $50,000,000 in the aggregate during the term of this Agreement;
(u) Disposition of assets acquired in a Permitted Acquisition or other Investment permitted hereunder that the Borrower determines will not be used or useful in the business of the Borrower and its Subsidiaries; and Dispositions made to obtain, to or in connection with obtaining, the extent required pursuant to the terms approval of any agreement applicable antitrust authority in connection with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),an Acquisition Transaction;
(iiiv) Dispositions of nonExcluded Assets by Non-core assets Loan Parties and Dispositions of Excluded Assets by Loan Parties for fair market value;
(which may include non-core real propertiesw) currently owned or acquired in an acquisition or Investment permitted Dispositions pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,accelerated share repurchase program or any stock buybacks using the proceeds of any permitted Indebtedness; and
(ivx) leases the settlement or early termination of any Permitted Bond Hedge Transaction and/or any Permitted Warrant Transaction in accordance with its terms. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and, if requested by the Administrative Agent, upon the certification by the Borrower that such Disposition is permitted by this Agreement, and without limiting the provisions of Section 10.11 the Administrative Agent shall be authorized to, and shall, take any actions reasonably requested by the Borrower in order to effect the foregoing (and the Lenders hereby authorize and direct the Administrative Agent to conclusively rely on any such certification by the Borrower in performing its obligations under this sentence). Notwithstanding the foregoing, in no event shall any Loan Party or any Restricted Subsidiary be permitted to Dispose of (a) any Material Intellectual Property to any Unrestricted Subsidiary or (b) any Material Intellectual Property related to any Specified Product, other than any licenses or sublicenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) any Specified Product in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Law.
Appears in 2 contracts
Samples: Credit Agreement (Ironwood Pharmaceuticals Inc), Credit Agreement (Ironwood Pharmaceuticals Inc)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furniture, fixtures inventory (including Hydrocarbons and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(cseismic data) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business real property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by any Subsidiary to the Borrower or to any Guarantor, or by the Borrower to any Guarantor;
(e) Dispositions of Equity Interests of claims against customers, working interest owners, other industry partners or any Property Level Subsidiariesother Person in connection with workouts or bankruptcy, any Hotel Properties and insolvency or other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) similar proceedings with respect to the Net Cash Proceeds of such Dispositionthereto;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions defaulted receivables in the ordinary course of business for collection;
(g) Disposition of funds collected for the beneficial interest of, or of the interests owned by, third party royalty or working interest owners;
(Ah) receivables Dispositions of interests in connection with the collectionoil and gas leases, settlement or compromise portions thereof (including if released or abandoned but not otherwise sold or transferred) so long as no well situated on any discount and/or forgiveness such lease, or located on any unit containing all or any part thereof), is capable (Bor is subject to being made capable through commercially feasible operations) equipmentof producing oil, (C) gas, or other current assets or (D) immaterial assets,Hydrocarbons in commercial quantities;
(iii) Dispositionsany Disposition of Borrowing Base Properties or any Swap Termination; provided, that prior to or contemporaneously therewith: (i) the Borrowing Base shall have been reduced or redetermined to the extent provided in Section 2.15(d), unless such reduction is not required pursuant to the terms of first proviso in such Section 2.15(d) and (ii) the Loan Parties shall have made all mandatory prepayments required by Section 2.04 in connection with such Asset Disposition or Swap Termination (including after giving effect to any agreement with respect such reduction in the Borrowing Base pursuant to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar partiesSection 2.15(d),);
(iiij) Dispositions permitted by Section 7.02 and Section 7.04;
(k) Dispositions of non-core assets property (which may include non-core real propertiesother than Borrowing Base Properties or Swap Contracts) currently owned or acquired not otherwise permitted in an acquisition or Investment permitted pursuant to the preceding clauses of this Section 7.03 in an aggregate amount not greater than $10,000,000,7.05; and
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(vl) Dispositions of cash and/or Cash Equivalents,
(vi) permitted by Section 7.01 and Section 7.06; provided, however, that (i) any termination Disposition pursuant to clauses (a) through (d), (g) through (i), (k) and (l) shall be for fair market value as determined by the Board of any lease the Borrower acting reasonably in the ordinary course of business and good faith, (ii) no Disposition shall be permitted under clauses (i) or (k) if any surrender or waiver of contractual rights or Default shall have occurred and be continuing at the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu time thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Lawwould result therefrom.
Appears in 2 contracts
Samples: Credit Agreement (Tapstone Energy Inc.), Credit Agreement (Tapstone Energy Inc.)
Dispositions. Make The Borrower will not, and will not permit any Disposition or enter into any agreement to Subsidiary to, make any Disposition, exceptexcept if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiaries, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furniture, fixtures inventory and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory Permitted Investments in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business real property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by any Subsidiary to the Borrower or another Subsidiary (provided that any such Disposition by a Loan Party must be to another Loan Party); provided that, if as a result of such Disposition, the Subsidiary acquiring such property qualifies as a Material Domestic Subsidiary (determined as of the date of such Disposition), the Borrower shall take, and shall cause such Material Domestic Subsidiary to take, the actions specified in Section 5.09 within the time limits set forth therein;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition6.03;
(f) To the extent constituting Dispositionsleases, (i) Investments permitted by Section 7.03licenses, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary subleases or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof sublicenses (including any discount and/or forgiveness thereof), (Bthe provision of open source software under an open source license) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease granted in the ordinary course of business and on ordinary commercial terms that do not interfere in any material respect with the business of the Borrower and its Subsidiaries;
(iig) any surrender Dispositions of intellectual property rights that are no longer used or waiver useful in the business of contractual rights the Borrower and its Subsidiaries;
(h) the discount, write-off or the settlementDisposition of accounts receivable deemed doubtful or uncollectible, release or surrender of contractual rights or litigation claims (including in tort) each case in the ordinary course of business,;
(viii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Law.Restricted Payments permitted by Section 6.08 and investments permitted by Section 6.05;
Appears in 2 contracts
Samples: 364 Day Credit Agreement (Arcosa, Inc.), Credit Agreement (Arcosa, Inc.)
Dispositions. Make any Disposition of any of its property (other than any Disposition of property having a fair market value not in excess of the greater of (x) $15,000,000 and (y) 12.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period in a single transaction or enter into any agreement to make any Dispositionseries of related transactions), except:
(a) Dispositions of obsolete obsolete, used, surplus or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Borrower or any Restricted Subsidiary;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(ed) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted property by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with or any Restricted Subsidiary to the applicable requirements Borrower or another Restricted Subsidiary; provided, that if the transferor of Section 2.04(b)
such property is a Loan Party, either (i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03transferee thereof must be a Loan Party, (ii) the Disposition is permitted by clause (s) below or (iii) to the extent such Disposition constitutes an Investment in a Restricted Payments Subsidiary that is not a Loan Party, such Disposition is permitted by Section 7.067.02;
(e) to the extent constituting a Disposition, any transaction permitted by Sections 7.02, 7.04 and/or 7.06 and (iii) Liens permitted by Section 7.01;
(if) Any Loan Party may make a Disposition Dispositions by the Borrower or any Restricted Subsidiary of property pursuant to any other Loan Party Sale and Lease-Back Transactions; provided, that the fair market value of all property so Disposed of shall not exceed the greater of (x) $65,000,000 and (iiy) any Subsidiary or Controlled JV Subsidiary 50.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period from and after the Closing Date; XXXX:\98106221\28\78831.0005
(other than a Loan Partyg) Dispositions of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andcash and Cash Equivalents;
(h) Parent Dispositions of accounts receivable in connection with the collection or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:compromise thereof;
(i) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license) of property in the ordinary course of business and which, in the good faith determination of the Borrower, do not materially interfere with the business of the Borrower or any Restricted Subsidiary;
(j) Dispositions of property subject to Casualty Events upon receipt of the Net Cash Proceeds of such Casualty Event;
(k) Dispositions in the ordinary course of business consisting of (A) receivables the abandonment, cancellation or lapse of IP Rights, or any issuance or registration, or application for issuance or registration, of any IP Right, which, in connection with the collectiongood faith determination of the Borrower, settlement are not material to the conduct of the business of the Borrower or compromise thereof (including any discount and/or forgiveness thereof)Restricted Subsidiary, (B) equipmenttaken as a whole, (C) other current assets or (D) immaterial assets,are no longer economical to maintain;
(iil) Dispositions, Dispositions of Investments in joint ventures to the extent required by, or made pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between the joint venture or parties set forth in, joint venture arrangements and similar parties),binding arrangements;
(iiim) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in property to an acquisition or Unrestricted Subsidiary; provided, that to the extent constituting an Investment, such Investment must be an Investment permitted pursuant to by Section 7.03 in an aggregate amount not greater than $10,000,000,7.02.
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(vn) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease real property and related assets in the ordinary course of business and in connection with relocation activities for directors, officers, members of management, employees or consultants of the Restricted Companies;
(iio) any surrender or waiver Dispositions of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) property in the ordinary course of business,business as part of a like-kind exchange under Section 1031 of the Code;
(viip) terminations of Swap Contracts;
(q) Dispositions of the Equity Interests and Indebtedness of Unrestricted Subsidiaries;
(r) Dispositions of any Receivables Facility Asset (and/or any participation therein) in connection with any Receivables Facility;
(s) Dispositions of property subject for fair market value; provided, that:
(i) at the time of such Disposition, no Event of Default shall exist under Section 8.01(a) or (f);
(ii) with respect to foreclosureany such Disposition for a purchase price in excess of the greater of (x) $25,000,000 and (y) 17.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period, casualty, eminent domain or condemnation proceedings (including in lieu thereof the Borrower or any similar proceedingof its Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents; and
(iii) for purposes of the 75% cash consideration requirement described immediately above:
(A) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the Obligations or that are owed to the Borrower or any Restricted Subsidiary) of the Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets (or that are otherwise terminated or cancelled in connection with the transaction with such transferee) and for which XXXX:\98106221\28\78831.0005 the Borrower and/or its applicable Restricted Subsidiary have been validly released by all relevant creditors in writing,
(viiiB) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition,
(C) any security received by the Borrower or any Restricted Subsidiary from such transferee that will be converted by such Person into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition), and
(D) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (s) that is at that time outstanding, not in excess of the greater of (x) $35,000,000 and (y) 26.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period; in each case, shall be deemed to be cash;
(t) Dispositions involving assets having a fair market value of not more than the greater of $27,500,000 and 20.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to the next Fiscal Year;
(u) [reserved];
(v) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Law.Law (including as a condition to, or in connection with, the consummation of the Transactions);
(w) any Disposition the purpose of which is to reincorporate or reorganize (i) any Restricted Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
(x) Dispositions of non-core (as determined by the Borrower in good faith) assets acquired in connection with any acquisition or other Investment permitted hereunder and sales of real property acquired in any acquisition or other Investment permitted hereunder; provided, that no Event of Default under Section 8.01(a) or (f) exists on the date on which the definitive agreement governing the relevant Disposition is executed;
(y) the settlement or early termination of any Permitted Bond Hedge Transaction and/or any related Permitted Warrant Transaction;
(z) Dispositions of any asset acquired with the proceeds of an Available Excluded Contribution Amount; and
(aa) any Disposition in connection with the consummation of the Transactions. It is understood and agreed that (a) to the extent that any Collateral is Disposed of as permitted by this Section 7.05, such Collateral shall be Disposed of free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition, and the Administrative Agent shall be authorized to take, and shall take, subject to the requirements of Section 7.12(c) of the Security Agreement, any action reasonably requested by the Borrower in order to effect the foregoing; provided, that in the case of a Disposition made to any Loan Party, the relevant transferred assets shall become part of the Collateral of the transferee Loan Party (except to the extent such assets constitute Excluded Assets), (b) any determination of the fair market value of any asset other than cash for purposes of this Section 7.05 shall be made by the Borrower in good faith at the time of the execution of the definitive agreement governing such Disposition and (c) this Section 7.05 shall not permit an IP Separation and Relicense Transaction. XXXX:\98106221\28\78831.0005
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (System1, Inc.), Credit and Guaranty Agreement (System1, Inc.)
Dispositions. Make No Credit Party shall, and no Credit Party shall suffer or permit any of its Restricted Subsidiaries to, make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete (i) obsolete, worn out, uneconomical, negligible, immaterial or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariessurplus Property, whether now owned or hereafter acquired, in the ordinary course Ordinary Course of businessBusiness and (ii) Property no longer used or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries;
(b) Dispositions of furnitureinventory, fixtures goods held for sale and equipment immaterial assets in the Ordinary Course of Business (including any Disposition of inventory in the Ordinary Course of Business or other personal property allowing any registrations or any applications for registration of any immaterial IP Rights to AINC lapse or an Affiliate thereof that is leased back under go abandoned in the ERF ProgramOrdinary Course of Business);
(c) Dispositions of inventory in the ordinary course of business;
(d) Dispositions of equipment or non-core assets in the ordinary course of business Property to the extent that (i) such property Property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and Property that is promptly purchased or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyProperty (which replacement Property is actually promptly purchased);
(d) Dispositions of Property (A) amongst the Credit Parties, (B) amongst the Borrower or any of its Restricted Subsidiaries that is a Credit Party and a Restricted Subsidiary that is not a Credit Party, so long as (i) to the extent a Credit Party is the party disposing of Property, such Disposition is an arm’s-length transaction and the respective Credit Party receives at least Fair Market Value, (ii) to the extent a Credit Party is the party purchasing the Property, such Disposition is an arm’s-length transaction and the respective Credit Party purchases such Property in an amount not in excess of Fair Market Value or (iii) to the extent such transaction constitutes an Investment, such transaction is permitted under Section 5.2, or (C) amongst Restricted Subsidiaries that are not Credit Parties;
(e) Dispositions permitted by Section 5.2 (other than Section 5.2(e) or Section 5.2(u)(i)), Section 5.4 and Section 5.6 and Liens permitted by Section 5.1;
(f) Dispositions in the Ordinary Course of Equity Interests Business of any Property Level SubsidiariesCash Equivalents for fair market value;
(g) leases, any Hotel Properties and other Dispositionssubleases, licenses or sublicenses, in each casecase in the Ordinary Course of Business and which do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(h) transfers of Property subject to an Event of Loss (it being understood and agreed that the Net Cash Proceeds of any such Event of Loss are subject to Section 1.8(c));
(i) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(j) Dispositions of accounts receivable in the Ordinary Course of Business in connection with the collection or compromise thereof;
(k) the unwinding of any Rate Contract pursuant to its terms;
(l) Permitted Sale Leasebacks permitted under Section 5.18;
(m) Dispositions not otherwise permitted by pursuant to this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05)5.5; provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to any Disposition pursuant to this clause (m) for a purchase price in excess of $10,000,000, the Net Cash Proceeds Borrower or any of its Restricted Subsidiaries shall receive not less than 75.0% of such Disposition;
consideration in the form of cash or Cash Equivalents (fprovided, however, that for the purposes of this clause (m)(i), the following shall be deemed to be cash: (A) To any liabilities (as shown on the Borrower’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by the Borrower or the applicable Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent constituting Dispositionsof the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition), and (iC) Investments permitted any Designated Non-Cash Consideration received by Section 7.03the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (m) that is at that time outstanding, not in excess of $15,000,000 at the time of the receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash), (ii) such Disposition shall be for Fair Market Value as reasonably determined by the Borrower or the applicable Restricted Payments permitted by Section 7.06Subsidiary in good faith based on sales of similar assets, and if available, (iii) Liens permitted the Borrower or the applicable Restricted Subsidiary complies with the applicable provisions of Section 1.8, (iv) the Disposition does not consist of Stock or Stock Equivalents of the Borrower, (v) no Event of Default exists or would result therefrom and (vi) such Disposition shall not include any Intellectual Property that is used by Section 7.01or material to the business of any Guarantor, the Borrower, or any of its Restricted Subsidiaries;
(in) Any Loan Party may make Dispositions not otherwise permitted pursuant to this Section 5.5 in an aggregate amount not to exceed $5,000,000, and any Dispositions of Property to the extent that the aggregate value of such Property sold in a Disposition single transaction or related series of transactions is equal to any other Loan $250,000 or less;
(o) each Credit Party and each of its Restricted Subsidiaries may surrender or waive contractual rights and settle or waive contractual or litigation claims in the Ordinary Course of Business so long as no Event of Default exists or would result therefrom;
(iip) Dispositions of Investments in joint ventures;
(q) the abandonment or other Disposition of Intellectual Property which is reasonably determined by the Borrower, in good faith, to be no longer economical, negligible, obsolete or otherwise not material to its business;
(r) any Subsidiary forgiveness, write-off or Controlled JV Subsidiary write-down of any intercompany obligations; provided that any forgiveness of obligations owing by a Non-Credit Party shall not result in additional ability to make Investments in Non-Credit Parties in the amount of such forgiven obligations;
(other than a Loan Partys) any forgiveness, write off or write down of a Loan Party may make a Disposition loans or advances to any Loan Party management, directors, officers and employees, in each case, made or incurred pursuant to Section 5.3(j);
(t) Dispositions or any other Subsidiary sale and leasebacks of real or Controlled JV Subsidiary personal property acquired in connection with the acquisition of any Loan Partynew customers in the Ordinary Course of Business; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iiiu) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition connection with Permitted Acquisitions or Investment other Investments permitted pursuant to under Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) 5.2; provided that (i) any termination the aggregate amount of any lease in such sales shall not exceed 25% of the ordinary course Fair Market Value of the acquired entity or business and (ii) any surrender or waiver of contractual rights each such sale is in an arm’s-length transaction and the Borrower or the settlementrespective Restricted Subsidiary receives at least Fair Market Value; provided, release however, an amount equal to the Incremental Percentage of the Net Cash Proceeds received with respect to each such Disposition shall be applied to prepay Loans in accordance with Section 1.8(c) (or surrender otherwise reinvested pursuant to the terms thereof). To the extent any Collateral is Disposed of contractual rights or litigation claims (including in tort) in as expressly permitted by this Section 5.5 to any Person other than the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof Borrower or any similar proceeding),
(viii) Dispositions made Guarantor, such Collateral shall be sold free and clear of the Liens created by the Loan Documents and, if requested by Agent, upon the certification by the Borrower that such Disposition is permitted by this Agreement, Agent shall be authorized to comply with take and shall take any actions deemed appropriate in order of any Governmental Authority or any applicable requirement of Lawto effect the foregoing.
Appears in 2 contracts
Samples: Credit Agreement (R1 RCM Inc.), Credit Agreement (R1 RCM Inc.)
Dispositions. Make any Disposition or enter into any agreement to No Company shall make any Disposition, except:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to equipment that is substantially worn, damaged, negligible, no longer be necessary used or useful, surplus or obsolete, in the business or operations of Borrower or its Subsidiaries or JV Subsidiaries, whether now owned or hereafter acquiredeach case, in the ordinary course Ordinary Course of businessBusiness;
(b) Dispositions of furniture, fixtures cash and equipment or other personal property to AINC or an Affiliate thereof that is leased back under Cash Equivalents in the ERF ProgramOrdinary Course of Business;
(c) Dispositions of inventory property (whether tangible or intangible) by (i) Borrowers and any of their Subsidiaries to any other Obligor, (ii) any Subsidiary of Borrowers that is not an Obligor to any other Subsidiary of Borrowers that is not an Obligor, and (iii) any Obligor to a Subsidiary of Borrowers that is not an Obligor (so long as permitted under Section 6.5); provided that (A) the portion (if any) of any Disposition made for less than fair market value and (B) any non-cash consideration received in the ordinary course exchange for such Disposition shall, in each case, constitute an Investment in such Subsidiary of businessBorrowers and must be permitted under Section 6.5;
(d) Dispositions of equipment or non-core assets exclusive licenses or sublicenses, or exclusive licenses or sublicenses of Intellectual Property, in each case, (A) entered into in the ordinary course Ordinary Course of Business which do not materially interfere with the business of Borrowers or their Subsidiaries, taken as a whole (including as to patents, trademarks, copyrights, and other intellectual property rights) or (B) in connection with or in furtherance of any rights or obligations under the extent that (i) such property is replaced with similar replacement property or exchanged for credit against Non-Brand IP Agreement and the purchase price of similar replacement property and (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyBrand IP Agreement;
(e) Dispositions sales or exchanges of specific items of equipment solely to replace such equipment with replacement equipment of substantially equivalent or greater value;
(f) Equity Interests Issuances by Borrowers (other than any issuance of Disqualified Equity Interests) so long as no Change of Control occurs;
(g) Equity Issuances by a Subsidiary of Borrowers to a Borrower or another Subsidiary of Borrowers constituting an Investment permitted hereunder;
(h) any lapse, abandonment or cancellation of intellectual property owned by Borrowers, or discontinuation of use or ceasing the use of any Property Level Subsidiariesother intellectual property, any Hotel Properties and other Dispositionswhether owned or licensed by Borrowers , in each case, not otherwise permitted by this Section 7.05 (includingA) that, for in the avoidance reasonable good faith judgment of doubtBorrowers, Dispositions is no longer used or useful in excess any material respect in the business of Borrowers and their Subsidiaries taken as a whole, or (B) in connection with or in furtherance of any monetary limitations as set forth in this Section 7.05); provided that rights or obligations under the Borrower complies with Non-Brand IP Agreement and the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01Brand IP Agreement;
(i) Any Loan Party may make any Disposition of real property to a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than Governmental Authority as a Loan Party) result of a Loan Party may make a Disposition condemnation, confiscation, requisition or eminent domain of such real property provided that the proceeds thereof are used and applied to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andthe extent required by Section 2.10(b)(ii) hereof;
(hj) Parent the sale or any Subsidiary or Controlled JV Subsidiary discount (including write-offs and compromises), in each case without recourse, of Parent may make or effect, as applicable:
(i) Dispositions Accounts Receivable arising in the ordinary course Ordinary Course of business of (A) receivables Business, but only in connection with the collectioncompromise, settlement or compromise thereof collection thereof;
(k) the making of Restricted Payments that are expressly permitted to be made pursuant to this Agreement;
(l) the sale of Receivables in connection with the Receivables Financing Facility;
(m) the granting of Permitted Encumbrances;
(n) other Dispositions (including any discount and/or forgiveness thereofSale and Leaseback Transaction, but excluding any Disposition of Equity Interests in a Wholly-Owned Subsidiary unless all Equity Interests in such Subsidiary are sold) not otherwise permitted under this Section 6.4; provided that (i) at the time of such Disposition, no Event of Default shall exist or would result from such Disposition, (ii) the aggregate fair market value of all property Disposed of in reliance on this clause (n) during any Fiscal Year shall not exceed an amount equal to 5.0% of Consolidated Total Assets (based on Consolidated Total Assets as of the last day of the most recent period of four consecutive Fiscal Quarters of Administrative Borrower for which financial statements have been delivered (or are required to be delivered) to Administrative Agent pursuant to Section 5.1(a) or (b)), (Biii) equipmentany Sale and Leaseback Transaction shall be made in compliance with Section 6.13, (Civ) other current assets or all Dispositions permitted under this clause (Dn) immaterial assets,
shall be made for fair value (iias reasonably determined by Administrative Borrower) Dispositionsand for consideration consisting of at least 75% cash and Cash Equivalents, and (v) to the extent required pursuant to Section 2.10(b), the terms Net Cash Proceeds thereof are used to prepay the Loans;
(o) Dispositions or transactions permitted by Section 6.3 or 6.5;
(p) any involuntary loss, damage or destruction of property, including pursuant to an Event of Loss;
(q) any agreement swap of assets in exchange for services or other assets; provided that (i) no Event of Default has occurred and is continuing, (ii) any such swap is for fair market value and (iii) any Collateral that is swapped must be in exchange for assets that become Collateral within the applicable timelines set forth in Section 5.8 and Section 5.9;
(r) the transfer for fair value of property to another Person in connection with a joint venture arrangement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),the transferred property; provided that such transfer is permitted under Section 6.5;
(iiis) the unwinding or settling of any Swap Obligation or obligation with respect to Cash Management Services in the Ordinary Course of Business;
(t) any Dispositions related to the Permitted Capital Project; provided that, (i) at the time of non-core assets such Disposition, no Event of Default shall exist or would result from such Disposition, and (ii) the aggregate fair market value of all property Disposed of in reliance on this clause (t) during any four Fiscal Quarter period shall not exceed an amount equal to 5.0% of Consolidated Total Assets (based on Consolidated Total Assets as of the last day of the most recent Fiscal Quarter of Administrative Borrower for which may include non-core real propertiesfinancial statements have been delivered (or are required to be delivered) currently owned or acquired in an acquisition or Investment permitted to Administrative Agent pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,5.1(a) or (b));
(ivu) leases and/or licenses of Hotel Properties and assets related thereto Dispositions in connection with the Transactions (including, without limitation, intellectual property) in the ordinary course of business,Internal Reorganization and Distribution); and
(v) Dispositions any Borrower and any Subsidiary of cash and/or Cash Equivalents,
(vi) any Borrower may (i) convert any termination of any lease in intercompany Indebtedness (other than to the ordinary course of business and extent owing by a non-Obligor to an Obligor) to Equity Interests otherwise permitted hereunder, (ii) discount, write off, forgive or cancel any intercompany Indebtedness or other obligation owing by any Obligor to a Subsidiary of any Borrower that is not, in each case, an Obligor or to an Obligor, (iii) surrender or waiver of waive contractual rights and settle, release, surrender or the settlement, release or surrender of waive contractual rights or litigation claims (including in tort) claims, in the ordinary course case of business,
clause (vii) Dispositions iii), in the Ordinary Course of property subject Business. Notwithstanding anything to foreclosurethe contrary herein, casualty, eminent domain or condemnation proceedings no Obligor shall consummate any transaction that results in the Disposition (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order whether by way of any Governmental Authority Restricted Payment, Investment, Lien, sale, conveyance, transfer or other Disposition, and whether in a single transaction or a series of transactions) of any applicable requirement Material Intellectual Property registered in the U.S. or Canada to any Subsidiary that is not an Obligor; provided that, Borrowers and the other Obligors may grant non-exclusive licenses of Lawany Material Intellectual Property to any such Subsidiary in the Ordinary Course of Business, so long as Borrowers and the other Obligors retain the beneficial ownership and the same rights to use such Material Intellectual Property prior to such license.
Appears in 2 contracts
Samples: Credit Agreement (Kellogg Co), Credit Agreement (WK Kellogg Co)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or obsolete, worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariessurplus property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of Holdings and its Restricted Subsidiaries;
(b) Dispositions of furniture, fixtures inventory and equipment other assets in the ordinary course of business (including allowing any registrations or other personal any applications for registration of any immaterial intellectual property to AINC lapse or an Affiliate thereof that is leased back under go abandoned in the ERF Programordinary course of business);
(c) Dispositions of inventory in the ordinary course of business;
(d) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and that is promptly purchased or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyproperty (which replacement property is actually promptly purchased);
(d) Dispositions of property to a Restricted Subsidiary, other than Dispositions by a Borrower of any Accounts arising under any Specified Contract;
(e) Dispositions in the form of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.037.02 (other than solely from Section 7.02(f)), (ii) in the form of mergers and other transactions permitted by Section 7.04, in the form of Restricted Payments permitted by Section 7.06, 7.06 (if not a disposition of Accounts arising under any Specified Contract) and (iii) in the form of Liens permitted by Section 7.01;
(if) Any Loan Party may make a Disposition subject to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) compliance with Section 6.17, Dispositions of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andCash Equivalents;
(hg) Parent leases, subleases, licenses or any Subsidiary or Controlled JV Subsidiary of Parent may make or effectsublicenses, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease each case in the ordinary course of business and which do not materially interfere with the business of Holdings and its Restricted Subsidiaries, taken as a whole;
(iih) transfers of property subject to Casualty Events upon receipt of the net cash proceeds of such Casualty Event;
(i) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in, joint venture arrangements and similar binding arrangements;
(j) Dispositions of accounts receivable (other than Dispositions by a Borrower of Accounts arising under any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tortSpecified Contract) in the ordinary course of business,business in connection with the collection or compromise thereof;
(viik) the unwinding of any Swap Contract pursuant to its terms;
(l) Permitted Sale Leasebacks;
(m) Dispositions not otherwise permitted pursuant to this Section 7.05 (other than any Disposition by a Borrower of property subject Accounts arising under any Specified Contract; provided that this parenthetical shall not exclude any such Disposition that constitutes all Accounts arising under one or more Specified Contracts if (x) the Borrowers shall deliver an updated Borrowing Base Certificate giving Pro Forma Effect to foreclosuresuch Disposition and (y) after giving Pro Forma Effect to such Disposition and the use of proceeds thereof, casualty(I) the German Revolving Credit Exposure of all Revolving Credit Lenders does not exceed the German Borrowing Base, eminent domain (II) the Maltese Revolving Credit Exposure of all Revolving Credit Lenders does not exceed the Maltese Borrowing Base and (III) the Aggregate Revolving Credit Exposure of all Revolving Credit Lenders does not exceed the Maximum Credit), if such Disposition shall be for Fair Market Value; provided that (i) with respect to any Disposition pursuant to this clause (m) for a purchase price in excess of the greater of (x) $5,000,000 and (y) 2.0% of Consolidated Total Assets as of the end of the Test Period most recently ended on or condemnation proceedings prior to the date such Disposition is made based upon the Section 6.01 Financials most recently delivered on or prior to such date, Holdings or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents; provided, further, that, for purposes of determining what constitutes cash and Cash Equivalents under this clause (including i), (A) any liabilities (as shown on Holdings’ or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in lieu thereof the footnotes thereto) of Holdings or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment of the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which Holdings and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing shall be deemed to be cash, (B) any similar proceedingsecurities received by Holdings or such Restricted Subsidiary from such transferee that are converted by Holdings or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of the applicable Disposition shall be deemed to be cash and (C) any Designated Non-Cash Consideration received by Holdings or such Restricted Subsidiary in respect of the applicable Disposition having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is outstanding at the time such Designated Non-Cash Consideration is received, not in excess of the greater of (x) $15,000,000 and (y) 6.0% of Consolidated Total Assets (measured as of the date such Disposition is made based upon the Section 6.01 Financials most recently delivered on or prior to such date) at the time of the receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash, and (ii) before and after giving effect to any such Disposition, no Event of Default shall have occurred and be continuing (other than with respect to a Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default existed or would have resulted from such Disposition),;
(viiin) [reserved];
(o) Dispositions made to comply with any order listed on Schedule 7.05; and
(p) the Disposition of any Governmental Authority the Equity Interests in, Indebtedness of, or any applicable requirement of Lawother securities issued by, an Unrestricted Subsidiary.
Appears in 2 contracts
Samples: Abl Credit Agreement (King Digital Entertainment PLC), Abl Credit Agreement (King Digital Entertainment PLC)
Dispositions. Make The Borrower will not, and will not permit any Disposition or enter into any agreement to of its Restricted Subsidiaries to, make any Disposition, except:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to Property and Dispositions of Property no longer be necessary used or useful in the conduct of the business or operations of the Borrower or its Subsidiaries or JV and the Restricted Subsidiaries, whether now owned or hereafter acquiredin each case, in the ordinary course of business;
(b) Dispositions of furniture, fixtures inventory and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory immaterial assets in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business Property to the extent that (i) such property Property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and Property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyProperty;
(d) Dispositions of Property (i) to a Restricted Subsidiary; provided that if the transferor of such Property is a Loan Party, the transferee thereof must be a Loan Party and (ii) to the extent such transaction constitutes an Investment permitted under Section 6.05;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Sections 6.03 and 6.04 and Liens permitted by Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition6.02;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, Dispositions of cash and (iii) Liens permitted by Section 7.01Cash Equivalents;
(ig) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary Dispositions of accounts receivable in connection with the collection or Controlled JV Subsidiary compromise thereof (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andin connection with financing transactions);
(h) Parent leases, subleases, licenses or any Subsidiary or Controlled JV Subsidiary of Parent may make or effectsublicenses, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and the Restricted Subsidiaries;
(i) transfers of Property to the extent subject to Casualty Events;
(j) any Disposition of Property; provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default exists), no Event of Default shall exist or would result from such Disposition, (ii) at the time of any surrender or waiver such Disposition, the aggregate book value of contractual rights or the settlement, release or surrender all property Disposed of contractual rights or litigation claims in reliance on this clause (j) (including in tortsuch Disposition) would not exceed $40,000,000 in the ordinary course aggregate and (iii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of business,$5,000,000, the Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (iii), each of the following shall be deemed to be cash: any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than Specified Indebtedness or liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing;
(viik) Dispositions of property subject Investments in, and issuances of any Equity Interests in, joint ventures to foreclosurethe extent required by, casualtyor made pursuant to customary buy/sell arrangements between, eminent domain or condemnation proceedings (including the joint venture parties set forth in lieu thereof or any joint venture arrangements and similar proceeding),binding arrangements; and
(viiil) Dispositions any Disposition of Property; provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to comply with any order a legally binding commitment entered into at a time when no Event of Default exists), no Event of Default shall exist or would result from such Disposition, (ii) at the time of any Governmental Authority such Disposition, the aggregate book value of all property Disposed of in reliance on this clause (l) would not exceed $75,000,000 in the aggregate, (iii) with respect to any Disposition pursuant to this clause (l) for a purchase price in excess of $5,000,000, the Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (iii), each of the following shall be deemed to be cash: any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than Specified Indebtedness and liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable requirement Disposition and for which the Borrower and all of Lawthe Restricted Subsidiaries shall have been validly released by all applicable creditors in writing and (iv) the Borrower shall prepay Term Loans in an amount up to the Net Cash Proceeds received from such Disposition in the manner and to the extent required by Section 2.10(b); provided that any Disposition of any Property to the extent classified pursuant to one or more of Sections 6.11(j) and (l) shall be for no less than the fair market value of such Property at the time of such Disposition determined in good faith by the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Crown Media Holdings Inc), Credit Agreement (Crown Media Holdings Inc)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of businessbusiness or other assets (including abandonment of any IP Rights) to the extent the Loan Parties have determined in their reasonable business judgment that such assets are no longer useful in the business of the Loan Parties;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business real property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(ed) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted property by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with or any Guarantor to the applicable requirements of Section 2.04(b)Borrower or to another Guarantor that is a Domestic Subsidiary;
(ie) with respect to the Net Cash Proceeds of such Disposition[intentionally omitted];
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or exclusive licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease IP Rights in the ordinary course of business and substantially consistent with past practice for terms not exceeding five (ii5) any surrender years;
(g) sales or waiver discounts without recourse of contractual rights accounts receivable or the settlement, release or surrender of contractual rights or litigation claims (including in tort) notes receivable arising in the ordinary course of business,;
(viih) leases and subleases of real property entered into by Loan Parties and their Domestic Subsidiaries, as lessors or sublessors, in the ordinary course of business at arm’s length and on market terms;
(i) so long as no Event of Default is then existing or would resulting therefrom, licenses of IP Rights to a present or future franchisee of any Loan Party, subject to franchisee and royalty arrangements entered into on an arm’s length basis and in the ordinary course of business;
(j) Dispositions of the Equity Interests or the assets of any Inactive Subsidiary;
(k) Dispositions of assets not otherwise permitted under clauses (a)-(j) above or clause (l) below not to exceed (A) $10,000,000 in the aggregate for any calendar year and (B) $30,000,000 in the aggregate from and after the Restatement Effective Date; and
(l) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof by the Borrower or any similar proceedingDomestic Subsidiary consisting solely of one or more manufacturing or commissary businesses or divisions, which are owned by such Person as of November 28, 2011; provided, however, that (x) any Disposition pursuant to this Section 7.05 (other than clause (d),
) shall be for fair market value, (viiiy) Dispositions made to comply at least eighty percent (80%) of the consideration received by the Loan Parties in connection with any order Disposition pursuant to this Section 7.05 (other than clauses (d) and (l)) shall be in the form of any Governmental Authority or any applicable requirement cash received on the consummation of Lawsuch Disposition and (z) this Section 7.05 shall not apply to treasury stock of the Borrower to the extent constituting margin stock (within the meaning of Regulation U of the FRB).
Appears in 2 contracts
Samples: Amendment No. 2 and Reaffirmation of Collateral Documents (Einstein Noah Restaurant Group Inc), Credit Agreement (Einstein Noah Restaurant Group Inc)
Dispositions. Make any Disposition or enter into any agreement (other than Dispositions permitted pursuant to make any DispositionSections 7.01, 7.04 and 7.06), except:
(a) Dispositions of obsolete surplus, obsolete, used or worn out property or other property determined by Borrower to that, in the reasonable judgment of the Company, is no longer be necessary useful in the its business (but excluding any real property);
(b) Dispositions of inventory, equipment or operations of Borrower or its Subsidiaries or JV Subsidiaries, whether now owned or hereafter acquired, accounts receivable in the ordinary course of business;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory cash and Cash Equivalents pursuant to transactions permitted under this Agreement (including pursuant to Section 7.02) or otherwise in the ordinary course of business;
(d) Dispositions of equipment or non-core assets in the ordinary course of business to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(eA) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) defaulted receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (B) Dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceeding;
(e) licensing, sublicensing and cross-licensing arrangements involving any technology or other intellectual property of the Company or any Restricted Subsidiary in the ordinary course of business or lapse or abandonment of intellectual property rights in the ordinary course of business that, in the reasonable judgment of the Company, is no longer useful in its business;
(f) Permitted Asset Swaps;
(A) the 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 and (B) any lease, sublease or license of assets (with a Loan Party as the lessor, sublessor or licensor) in the ordinary course of business;
(i) transfers of condemned property as a result of the exercise of “eminent domain” or other similar policies or (ii) transfers of properties to the extent that such property has been subject to a casualty event for which the Loan Parties or a creditor with a Lien on such property that is permitted hereunder have received (or have not been denied) insurance proceeds or condemnation awards;
(i) other Dispositions (other than Dispositions of ABL Priority Collateral, except to the extent such Disposition accompanies the Disposition of a mining operation or all or substantially all of the assets of Subsidiary), if immediately after giving effect to such Disposition, (i) no Event of Default has occurred and is continuing, (ii) the consideration received for such Disposition shall be in an amount at least equal to the fair market value thereof as reasonably determined by the Company in good faith and (iii) at least 75% of the consideration for such Dispositions undertaken pursuant to this Section 7.05(i) shall be paid in cash or Cash Equivalents, provided that, solely for purposes of this provision, each of the following shall be deemed to be cash:
(i) any securities, notes, other obligations or assets received by the Company or any Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof, to the extent of the cash or Cash Equivalents received in that conversion;
(ii) any reclamation, employment related or any other liabilities of the Company or any Restricted Subsidiary (other than contingent liabilities) that are assumed by the transferee of any such assets and as a result of which the Company or such Restricted Subsidiary is released from further liability; and
(iii) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Disposition; provided that (1) the aggregate fair market value of such Designated Non-Cash Consideration, as reasonably determined by the Company in good faith, taken together with the fair market value at the time of receipt of all other Designated Non-Cash Consideration received pursuant to this clause (C) minus (2) the amount of “Net Proceeds” (as defined in the Term Loan Credit Agreement) previously realized in cash from prior Designated Non-Cash Consideration shall not exceed $10,000,000;
(j) any Investment permitted pursuant to Sections 7.02(j), 7.02(k) or 7.02(l), which constitutes a Disposition;
(k) Dispositions of Excluded Assets and other Dispositions that do not constitute Asset Sales;
(l) to the extent allowable under Section 1031 of the Code, or any comparable or successor provision, any like kind exchange of property for use in a Similar Business;
(m) (i) any surrender or waiver of contractual rights or the settlement, release release, or surrender of contractual rights or other litigation claims (including in tort) in the ordinary course of business,business or (ii) any settlement, discount, write off, forgiveness, or cancellation of any Indebtedness owing by any present or former directors, officers, or employees of the Company or` any Restricted Subsidiary or any of their successors or assigns;
(viin) Dispositions the unwinding or termination of any Hedging Obligations; and
(o) the sale of assets by the Company and its Restricted Subsidiaries consisting of real property subject solely to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof the extent that such real property is not necessary for the normal conduct of operations of the Company and its Restricted Subsidiaries. To the extent the Required Lenders waive the provisions of this Section 7.05 with respect to the Disposition of any property or any similar proceeding),
property is Disposed of as permitted by this Section 7.05, such property (viiiunless sold, transferred or otherwise disposed of to a Loan Party) Dispositions made shall be Disposed of free and clear of the Liens created by the Collateral Documents, and the Administrative Agent and/or the Collateral Agent shall take all actions reasonably requested by the Company to comply with any order of any Governmental Authority or any applicable requirement of Laweffect the foregoing.
Appears in 2 contracts
Samples: Asset Based Revolving Credit Agreement (Contura Energy, Inc.), Asset Based Revolving Credit Agreement (Contura Energy, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, exceptunless:
(a) Dispositions the Obligor receives consideration (including by way of obsolete relief from, or worn out property by any other Person assuming responsibility for, any liabilities, contingent or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiaries, whether now owned or hereafter acquired, in the ordinary course of business;
(botherwise) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(d) Dispositions of equipment or non-core assets in the ordinary course of business at least equal to the extent that fair market value (i) such property is replaced with similar replacement property or exchanged for credit against fair market value to be determined on the purchase price date of similar replacement property and (ii) the proceeds of contractually agreeing to such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other DispositionsDisposition), in each case, not otherwise permitted as determined in good faith by this Section 7.05 the Board of Directors of the Borrower, of the shares and assets subject to such Disposition (including, for the avoidance of doubt, if such Disposition is a Permitted Asset Swap);
(b) in any such Disposition, or series of related Dispositions (except to the extent the Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Disposition (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) received by the Obligor is in excess the form of any monetary limitations as set forth cash or Cash Equivalents;
(c) an amount equal to 100% of the Net Available Cash from such Disposition is applied by the Obligor to prepay Indebtedness in this accordance with Section 7.052.05(b)(ii); provided that the Borrower complies with the applicable requirements of Section 2.04(b)and
(id) with respect to any Disposition of property or assets from an Obligor to a Non-Guarantor, the Net amount received in respect of such Disposition is equal to the fair market value on the date of the Disposition of the assets or property to such Non-Guarantor. For the purposes of Section 7.05(b), the following will be deemed to be cash: (1) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of an Obligor (other than Subordinated Indebtedness of the Borrower or a Guarantor) and the release of such Obligor from all liability on such Indebtedness or other liability in connection with such Disposition; (2) securities, notes or other obligations received by the Obligor from the transferee that are converted by such Obligor into cash or Cash Proceeds Equivalents within 180 days following the closing of such Disposition;
; (f3) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary Indebtedness (other than a Loan PartySubordinated Indebtedness) of any Restricted Subsidiary that is no longer a Loan Party may make Restricted Subsidiary as a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary result of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositionssuch Disposition, to the extent required that the Borrower and each other Restricted Subsidiary are released from any Guarantee Obligations in respect of payment of such Indebtedness in connection with such Disposition; (4) consideration consisting of Indebtedness of the Borrower (other than Subordinated Indebtedness) received after the Signing Date from Persons who are not an Obligor; and (5) any Designated Non-Cash Consideration received by an Obligor in such Dispositions having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this covenant that is at that time outstanding, not to exceed the terms greater of $25,000,000 and 1.25% of Total Assets (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value). For the avoidance of doubt, no Obligor shall be permitted to purchase any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted Senior Notes pursuant to this Section 7.03 7.05. Notwithstanding anything to the contrary in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses this Agreement, in no event shall the Borrower issue or sell, or permit any other Obligor to issue or sell, any Capital Stock of Hotel Properties and assets related thereto (includingiGate Technologies Inc., without limitationiGate Inc., intellectual property) in iGate Holding Corporation, iGATE Global Solutions Limited, the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof Borrower or any similar proceeding),
(viii) Dispositions made of its Subsidiaries to comply with any order of any Governmental Authority or any applicable requirement of LawPerson other than to an Obligor.
Appears in 2 contracts
Samples: Credit Agreement (Igate Corp), Credit Agreement (Igate Corp)
Dispositions. Make The Borrower will not, and will not permit any Disposition or enter into of its Subsidiaries to, Dispose of any agreement to make any Disposition, of its assets except:
(a) Dispositions issuances of obsolete or worn out property or property determined Qualified Equity Interests by Borrower any Wholly-Owned Subsidiary of a Loan Party to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiaries, whether now owned or hereafter acquireda Loan Party, in each case subject to the ordinary course of businessCollateral and Guarantee Requirement and Section 2.7(b)(i)(B);
(b) Dispositions of furniture, fixtures and equipment the sale or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions lease of inventory in the ordinary course of business;
(c) the use or transfer of money, cash or Cash Equivalents in a manner that is not prohibited by the terms of this Credit Agreement or the other Loan Documents;
(d) Dispositions of equipment or the licensing and sublicensing on a non-core assets exclusive basis of patents, trademarks, copyrights, and other intellectual property rights in the ordinary course of business to business, and the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price leasing and subleasing of similar replacement property and (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement any other property;
(e) Dispositions the granting of Equity Interests of any Property Level Subsidiaries, any Hotel Properties Liens permitted hereunder and the other Dispositions, in each case, not otherwise transactions permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition7.2;
(f) To any Casualty Event and the extent constituting DispositionsDisposition of any property subject thereto;
(g) the abandonment, cancellation or lapse of issued patents, registered trademarks and other registered intellectual property of a Loan Party or Subsidiary thereof to the extent, in such Loan Party’s reasonable business judgment, not economically desirable in the conduct of such Loan Party’s business or so long as such lapse is not materially adverse to the interests of the Lenders and (ii) the expiration of patents in accordance with their statutory terms;
(h) the sale of assets (other than Equity Interests of any Wholly-Owned Subsidiary, unless all of the Equity Interests of such Wholly-Owned Subsidiary (other than the Borrower) are sold in accordance with this clause (h)) for at least fair market value, so long as (A) no Default then exists or would immediately result therefrom, (B) at least 75% of the consideration received by the applicable Loan Party consists of cash or Cash Equivalents and is paid at the time of the closing of such sale, (C) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.7(b)(i)(A) and (D) the aggregate amount of the cash and non-cash proceeds received from all assets sold pursuant to this clause (i) Investments permitted by Section 7.03shall not exceed $2,500,000 in the aggregate during the term of this Credit Agreement (for this purpose, (ii) Restricted Payments permitted by Section 7.06, using the fair market value of property other than cash and (iii) Liens permitted by Section 7.01Cash Equivalents);
(i) Any Loan Party may make a Disposition to any other Loan Party Dispositions of assets acquired by the Borrower and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required its Subsidiaries pursuant to a Permitted Acquisition consummated within 12 months of the terms date of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 such Permitted Acquisition in an aggregate amount not greater than to exceed $10,000,000,500,000 for each such Permitted Acquisition;
(ivj) leases and/or licenses any trade in of Hotel Properties and assets related thereto (including, without limitation, intellectual property) equipment in exchange for other equipment in the ordinary course of business,; and
(vk) Dispositions the unwinding or terminating of cash and/or Cash Equivalents,
(vi) (i) hedging arrangements or transactions contemplated by any termination Swap Agreement which are not prohibited hereunder. To the extent the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 7.5 with respect to the sale of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlementCollateral, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
Collateral is sold as permitted by this Section 7.5, such Collateral (viiiunless sold to a Loan Party) Dispositions made shall be sold automatically free and clear of the Liens created by the Collateral Documents and, at the expense of the Loan Parties, the Administrative Agent shall take all reasonable actions any Loan Party reasonably requests in writing in order to comply with any order of any Governmental Authority or any applicable requirement of Laweffect the foregoing.
Appears in 2 contracts
Samples: Credit Agreement (Harvard Bioscience Inc), Credit Agreement (Harvard Bioscience Inc)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete obsolete, worn out, used or worn out surplus property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiaries(other than any Hotel Real Property), whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Borrower or the Restricted Subsidiaries;
(b) Dispositions of furnitureinventory, fixtures and equipment equipment, accounts receivables or other personal property to AINC or an Affiliate thereof that is leased back under current assets in the ERF Program;
(c) Dispositions ordinary course of inventory business, goods held for sale in the ordinary course of business and Immaterial Assets and termination of leases and licenses in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(ed) Dispositions of property or Equity Interests to the Borrower or any Restricted Subsidiary;
(e) to the extent constituting Dispositions, transactions permitted by (i) Section 7.01, (ii) Section 7.02 (other than 7.02(e)), (iii) Section 7.04 (other than 7.04(f)) and (iv) Section 7.06 (other than 7.06(d));
(f) [Reserved];
(g) Dispositions of any Property Level cash and Cash Equivalents;
(h) (i) leases, subleases, licenses or sublicenses (including non-exclusive licenses and sublicenses of software or other IP Rights) and terminations thereof, in each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and the Restricted Subsidiaries (taken as a whole), (ii) Dispositions of intellectual property that is no longer used or useful in the business of the Borrower and the Restricted Subsidiaries, (iii) the surrender, or waiver of contract rights or settlement, release or surrender of contract, tort or other claims;
(i) transfers of property subject to Casualty Events;
(j) Dispositions of property; provided that (i) at the time of such Disposition (other than any Hotel Properties such Disposition made pursuant to a legally binding commitment entered into at a time when no Default has occurred and is continuing), no Event of Default shall have occurred and been continuing or would result from such Disposition, (ii) the Borrower or any Restricted Subsidiary shall receive consideration at the time of such Disposition at least equal to the fair market value of the property subject to such Disposition, as such fair market value may be determined in good faith by the Borrower; (iii) the Borrower or any Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents (in each case, free and clear of all Liens at the time received); provided, however, that for the purposes of this clause (iii), the following shall be deemed to be cash: (A) any liabilities (as shown on the most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other Dispositionsthan liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Disposition or otherwise cancelled or terminated in connection with the transaction with such transferee, and, in each case, for which the Borrower and all Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by the Borrower or the applicable Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition, and (C) aggregate non-cash consideration received by the Borrower or the applicable Restricted Subsidiary having an aggregate fair market value (determined as of the closing of the applicable Disposition for which such non-cash consideration is received) not to exceed the greater of $50,000,000 and 3.0% of Total Assets; provided, further, that the requirement in this clause (iii) shall not apply to (x) Dispositions of tangible property in the ordinary course of business as part of a tax-deferred exchange (also known as a “1031 exchange” or “like-kind exchange”) or any similar provision of foreign law, or (y) otherwise to Dispositions for which all or a portion of the consideration for such Disposition consists of all or substantially all of the assets or Equity Interests of a Person engaged in a business that would be permitted by Section 7.07 and (iv) to the extent the aggregate amount of Net Proceeds received by the Borrower or a Restricted Subsidiary from Dispositions made pursuant to this Section 7.05 (including7.05(j) in the aggregate exceeds $5,000,000 in any fiscal year, for the avoidance of doubt, Dispositions all Net Proceeds in excess of any monetary limitations as set forth such amount in this such fiscal year shall be applied to prepay Loans in accordance with Section 7.052.05(b)(ii);
(k) Dispositions of non-core assets acquired in connection with Permitted Acquisition or other Investments; provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds aggregate amount of such Disposition;
(f) To sales shall not exceed 25% of the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party fair market value of the acquired entity or business and (ii) any each such sale is in an arm’s-length transaction and the Borrower or Restricted Subsidiary or Controlled JV Subsidiary receives at least fair market value in exchange therefor (other than a Loan Party) of a Loan Party as such fair market value may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andbe determined in good faith by the Borrower);
(hl) Parent Dispositions or any Subsidiary discounts without recourse of accounts receivable in connection with the compromise or Controlled JV Subsidiary collection thereof in the ordinary course of Parent may make or effect, as applicable:business;
(im) Dispositions of property pursuant to sale-leaseback transactions; provided that to the extent the aggregate Net Proceeds from all such Dispositions since the Closing Date, exceeds $10,000,000, such excess shall be reinvested in accordance with the definition of “Net Proceeds” or otherwise applied to prepay Loans in accordance with Section 2.05(b)(ii);
(n) any swap of assets in exchange for services or other assets in the ordinary course of business of (A) receivables comparable or greater value or usefulness to the business of the Borrower and its Subsidiaries as a whole, as determined in connection with good faith by the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,management of the Borrower;
(iio) Dispositionsany sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(p) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, customary buy/sell arrangements between between, the joint venture or parties set forth in joint venture arrangements and similar parties),binding arrangements;
(iiiq) Dispositions the unwinding or settlement of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,any Swap Contract;
(ivr) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease lapse or abandonment in the ordinary course of business and (ii) of any surrender registrations or waiver applications for registration of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) any IP Rights not necessary in the ordinary course conduct of business,the business of the Borrower and its Restricted Subsidiaries;
(viis) Dispositions required to be made by a Governmental Authority; and
(t) sales of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof assets received by the Company or any similar proceeding),
(viii) Dispositions made of its Restricted Subsidiaries upon the foreclosure on a Lien. To the extent any Collateral is Disposed of as permitted by this Section 7.05 to comply with any Person other than a Loan Party, such Collateral shall automatically be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent or, as applicable, the Mexican Collateral Agent shall be authorized to, and promptly upon the request of the Borrower, shall take any actions reasonably requested by the Borrower in order of any Governmental Authority or any to effect the foregoing within such time period as may be required to consummate the applicable requirement of Lawtransaction.
Appears in 2 contracts
Samples: Credit Agreement (Playa Hotels & Resorts N.V.), Restatement Agreement (Playa Hotels & Resorts N.V.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of business, and Dispositions of furniture, fixtures and equipment no longer used or useful in the ordinary course of business of the Loan Parties;
(b) Dispositions of furnitureinventory (including Cage Cash) and assets of de minimis value, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in any case in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets property (other than Real Property) in the ordinary course of business to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such similar replacement property;
(ed) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that property to the Borrower complies with the applicable requirements of Section 2.04(b)or to a Restricted Subsidiary;
(e) (i) with respect to the Net Cash Proceeds of such DispositionPermitted Liens constituting Dispositions and (ii) Dispositions permitted by (x) Section 7.04 and (y) Section 7.06;
(f) To non-assignable, non-sublicensable licenses of information technology systems to the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01Manager pursuant to the Management Agreement or a license agreement executed in connection therewith;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iiig) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) Cash Equivalents in the ordinary course of business,;
(v) Dispositions of cash and/or Cash Equivalents,
(vih) (i) any termination in the case of any lease the Mortgaged Properties, Real Property Leases permitted under Section 7.19 and (ii) with respect to all other properties and assets of the Loan Parties, leases, licenses, subleases or sublicenses granted to others in the ordinary course of business and which do not materially interfere with the business of the Borrower or the Restricted Subsidiaries;
(i) transfers of property subject to Casualty Events upon receipt of the Net Cash Proceeds of such Casualty Event;
(j) Dispositions of property not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Default exists), no Default shall exist or would result from such Disposition, (ii) the aggregate Fair Market Value of all property Disposed of in reliance on this clause (j) shall not exceed $20,000,000 in the aggregate and (iii) with respect to any surrender Disposition pursuant to this clause (j) for a purchase price in excess of $10,000,000, the Borrower or waiver a Restricted Subsidiary shall receive not less than 75% of contractual rights such consideration in the form of cash or Cash Equivalents at the settlementtime of the consummation of such Disposition (in each case, release free and clear of all Liens at the time received, other than nonconsensual Permitted Liens and Liens permitted by Section 7.01(s) and clauses (i) and (ii) of Section 7.01(t)); provided, however, that for the purposes of this clause (iii), each of the following shall be deemed to be cash received at closing: (A) any liabilities (as shown on the Borrower’s or surrender such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of contractual rights the Borrower or litigation claims such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing and (including B) any securities received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of the applicable Disposition;
(k) [reserved];
(l) [reserved];
(m) Dispositions of Investments in tortjoint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(n) Dispositions or discounts without recourse of accounts receivable in connection with the compromise or collection thereof in the ordinary course of business,business (and not as part of any financing transaction); and
(viio) Dispositions the Restructuring Transactions; provided that (1) any Disposition of any property subject pursuant to foreclosurethis Section 7.05 (except pursuant to Sections 7.05(d) and (e)(ii)(y)), casualty, eminent domain or condemnation proceedings shall be for no less than the Fair Market Value of such property at the time of such Disposition and (including 2) in lieu thereof no case shall the Borrower or any similar proceeding),
Subsidiary be permitted to effect a Disposition of (viiiA) Dispositions made any Equity Interest in Boulder LLC, Red Rock LLC, Palace LLC or Sunset LLC or a significant portion of their respective properties, (B) any Core Property, (C) any Equity Interest in OpCo Holdings, (D) any Equity Interest in GVR Holdco 3, (E) any Equity Interest in LandCo Holdings or (F) any Equity Interest in IP Holdco. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to comply with any order of any Governmental Authority Person other than the Borrower or any applicable requirement Restricted Subsidiary, such Collateral shall be sold free and clear of Lawthe Liens created by the Loan Documents, and the Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 2 contracts
Samples: Credit Agreement (Station Casinos LLC), Credit Agreement (Station Casinos LLC)
Dispositions. Make The Borrower will not, and will not permit any Disposition or enter into of its Restricted Subsidiaries to, Dispose of any agreement to make any Disposition, of its assets except:
(a) the sale or lease of (i) inventory, (ii) goods held for sale in the ordinary course of business and (iii) termination of leases and licenses in the ordinary course of business;
(b) Dispositions of obsolete or worn out property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(c) the use or transfer of money, cash or Cash Equivalents in a manner that is not prohibited by the terms of this Credit Agreement or the other Loan Documents;
(d) (i) Dispositions among the Loan Parties, (ii) Dispositions among Restricted Subsidiaries that are not Loan Parties, and (iii) Dispositions from a Loan Party to a Non-Loan Party Subsidiary that do not involve assets having an aggregate Fair Market Value for all such assets so Disposed in excess of (x) the greater of (a) $10,000,000 and (b) 10.0% of Consolidated EBITDA for the most recently ended Measurement Period (calculated on a Pro Forma Basis), in any Fiscal Year;
(e) Dispositions pursuant to Transfer Pricing Arrangements;
(f) the granting of Permitted Liens and the other transactions permitted by Section 7.2;
(i) the abandonment, cancellation or lapse of issued patents, registered trademarks and other registered intellectual property determined by Borrower of a Loan Party or Restricted Subsidiary thereof to no longer be necessary the extent, in such Loan Party’s reasonable business judgment, not economically desirable in the conduct of such Loan Party’s business or operations so long as such lapse is not materially adverse to the interests of the Lenders and (ii) the expiration of patents in accordance with their statutory terms;
(i) leases, subleases, licenses or sublicenses (including the provision of software, including under an open source license or the licensing of other intellectual property rights) and terminations thereof, in each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Restricted Subsidiaries (taken as a whole) and (ii) Dispositions of Intellectual Property (including inbound or outbound licenses) that do not materially interfere with the business of the Borrower and its Restricted Subsidiaries (taken as a whole) (in each case other than to an Unrestricted Subsidiary);
(i) the sale of assets (other than Equity Interests of any Wholly-Owned Subsidiary, unless all of the Equity Interests of such Wholly-Owned Subsidiary (other than the Borrower) are sold in accordance with this clause (i) to a Person that is not an Affiliate of a Loan Party) for at least Fair Market Value, so long as (A) no Default then exists or JV Subsidiarieswould immediately result therefrom and (B) with respect to a Disposition for a purchase price in excess of $10,000,000, at least 75% of the consideration received by the applicable Loan Party consists of cash or Cash Equivalents or converts to cash within 180 days of such sale; provided that, for purposes of this clause (B), Designated Non-Cash Consideration received in respect of such asset sale, taken together with all other Designated Non-Cash Consideration received in respect of asset sales pursuant to this clause (i) that do not exceed $10,000,000 in the aggregate at any time outstanding shall be deemed to be cash (with the Fair Market Value of each item of Designated Non-Cash Consideration being determined in good faith by the Borrower at the time received and without giving effect to subsequent changes in value);
(A) any termination of any lease in the ordinary course of business, (B) any expiration of any option agreement in respect of real or personal property, (C) any surrender or waiver of contractual rights or (D) the settlement, release, reorganization or surrender of contract, tort or other claim in the ordinary course of business;
(k) Dispositions of obsolete, worn out, used or surplus property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of Holdings, the Borrower or any of its Restricted Subsidiaries;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(d) Dispositions of equipment or non-core assets in the ordinary course of business to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iiil) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition connection with any Acquired Entity or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) Business; provided that (i) any termination the aggregate amount of any lease in such sales shall not exceed 15% of the ordinary course Fair Market Value of business the Acquired Entity or Business and (ii) any surrender or waiver of contractual rights each such sale is in an arm’s-length transaction and the Borrower or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,respective Restricted Subsidiary receives at least Fair Market Value;
(viim) any sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(n) Dispositions of property subject Investments in joint ventures to foreclosurethe extent required by, casualtyor made pursuant to customary buy/sell arrangements between, eminent domain or condemnation proceedings (including the joint venture parties set forth in lieu thereof or any joint venture arrangements and similar proceeding),binding arrangements;
(viiio) to the extent constituting Dispositions, transactions permitted by (i) Section 7.2, (ii) Section 7.3 (other than clause (a)(iv) thereof) and (iii) Section 7.4; and
(p) the unwinding or terminating of hedging arrangements or transactions contemplated by any Swap Agreement. Notwithstanding anything to the contrary herein, the aggregate amount of Dispositions made from Loan Parties to comply Non-Loan Party Subsidiaries permitted pursuant to Sections 7.5(d) and (i) in any Fiscal Year, together with any order the aggregate amount of any Governmental Authority or any applicable requirement of Lawoutstanding Investments permitted pursuant to Sections 7.4(d), (e), (k), (l), (m) and (cc) in Non-Loan Party Subsidiaries, shall not exceed the Non-Guarantor Investment Cap.
Appears in 2 contracts
Samples: Credit Agreement (TechTarget, Inc.), Credit Agreement (TechTarget Holdings Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any DispositionDisposition of any assets having a fair market value in excess of $400,000, in a single transaction or a series of related transactions, except:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquiredacquired in the ordinary course of business and Dispositions of property no longer used or useful in the conduct of the business of the Parent Guarantor, the Borrower and the Restricted Subsidiaries (including, in Borrower’s reasonable business judgment, allowing any registrations or any applications for registration of any IP Rights to lapse or go abandoned);
(b) Dispositions of inventory and goods held for sale in the ordinary course of business;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(d) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by the Borrower to any Restricted Subsidiary, or by any Restricted Subsidiary to the Borrower or to a Restricted Subsidiary; provided that, if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must either be the Borrower or a Guarantor or such Disposition must otherwise constitute an Investment permitted by Section 6.02;
(e) Dispositions of Equity Interests accounts receivable for purposes of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Dispositioncollection;
(f) To Dispositions of investment securities and Cash Equivalents in the extent constituting Dispositionsordinary course of business;
(g) (A) Dispositions permitted by Section 6.04 (other than Section 6.04(a)(ii)(C), Section 6.04(b) or Section 6.04(d)(ii)(B)); (iB) Dispositions that constitute Investments permitted by Section 7.03, 6.02 (iiother than Section 6.02(g)); (C) Dispositions that constitute Restricted Payments permitted by Section 7.06, and 6.06 (iiiother than Section 6.06(o))and (D) Dispositions that constitute Liens permitted by Section 7.016.01 (other than Section 6.01(u));
(h) Dispositions consisting of licenses or sublicenses of IP Rights in the ordinary course of business;
(i) Any Loan Party may make a Disposition Dispositions of property subject to any other Loan Party or resulting from casualty losses and (ii) transfers of condemned property as a result of the exercise of “eminent domain” or other similar policies to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement;
(j) Dispositions by the Parent Guarantor, the Borrower and the Restricted Subsidiaries of property not otherwise permitted under this Section 6.05; provided that, (i) at the time of such Disposition and after giving effect thereto, no Event of Default shall exist or would result from such Disposition, (ii) the consideration received for such property shall be in an amount at least equal to the fair market value thereof, (iii) no less than 75% of such consideration shall have been paid in cash or Cash Equivalents and (iv) the aggregate fair market value of the assets so Disposed pursuant to this clause (j) shall not exceed 20.0% of Consolidated Total Assets in any Subsidiary Fiscal Year; provided that, for the purposes of clause (iii), the following shall be deemed to be cash: (A) any liabilities (as shown on the Parent Guarantor’s, the Borrower’s or Controlled JV the applicable Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Parent Guarantor, the Borrower or such Restricted Subsidiary (other than a Loan Partyliabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee with respect to the applicable Disposition and for which the Parent Guarantor, the Borrower and all Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by the Parent Guarantor, the Borrower or the applicable Restricted Subsidiary from such transferee that are converted by the Parent Guarantor, the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of a Loan Party may make a the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition, and (C) the aggregate Designated Non-Cash Consideration received by the Parent Guarantor, the Borrower or such Restricted Subsidiary having an aggregate fair market value (determined as of the closing of the applicable Disposition for which such Designated Non-Cash Consideration is received) not to any Loan Party or any other Subsidiary or Controlled JV Subsidiary exceed the greater of $4,000,000 and 10% of Consolidated EBITDA for the most recently ended Measurement Period (determined at the time of such Disposition) (net of any Loan Party; andsuch Designated Non-Cash Consideration converted into Cash Equivalents);
(hk) Dispositions by the Parent or any Subsidiary or Controlled JV Subsidiary Guarantor, the Borrower and the Restricted Subsidiaries of Parent may make or effectproperty acquired after the Funding Date in connection with a Permitted Acquisition; provided that, as applicable:
(i) Dispositions the Borrower disposes of any such assets within 270 days following the closing of such Permitted Acquisition and (ii) the fair market value of the assets to be divested in connection with any Permitted Acquisition does not exceed an amount equal to 35% of the total cash and non-cash consideration for such Permitted Acquisition;
(l) leases, licenses, easements, subleases, sublicenses or other similar agreements with respect to real or personal property granted to others in the ordinary course of business which do not interfere in any material respect with the business of the Parent Guarantor, the Borrower or any Restricted Subsidiary;
(m) the issuance of (Ax) receivables in connection with Qualified Equity Interests by a Restricted Subsidiary (other than the collection, settlement Borrower) to the Parent Guarantor or compromise thereof to another Restricted Subsidiary (including any discount and/or forgiveness thereof), and each other equity holder on a no greater than pro rata basis) and (By) equipment, (C) other current assets or (D) immaterial assets,Qualified Equity Interests by the Borrower to the Parent Guarantor;
(iin) Dispositions, Dispositions of Investments in joint ventures to the extent required by, or made pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between the joint venture parties set forth in the joint venture agreement or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired binding agreements entered into with respect to such Investment in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Law.such joint venture;
Appears in 2 contracts
Samples: Credit Agreement (Waldencast PLC), Credit Agreement (Waldencast Acquisition Corp.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of (i) obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of businessbusiness or (ii) property which the Borrower in good faith determines is surplus property and as a result is no longer useful or economic in the conduct of the business of the Borrower and its Subsidiaries;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business real property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly are, within 30 days after such Disposition, applied to the purchase price of such replacement property;
(ed) Dispositions of Equity Interests of property by (x) the Borrower to any Property Level Subsidiaries, Guarantor and (y) any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for Subsidiary to the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05)Borrower or to a wholly-owned Subsidiary; provided that for Dispositions described in clause (y) above, if the transferor of such property is a Guarantor, the transferee thereof must either be the Borrower complies with the applicable requirements of Section 2.04(b)or a Guarantor;
(e) (i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments Dispositions permitted by Section 7.03, 7.04 and (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens the grant of any Lien permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iiif) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,Cash Equivalents;
(ivg) leases and/or Non-exclusive licenses of Hotel Properties and assets related thereto IP Rights (including, without limitation, intellectual propertyi) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business , and (ii) in favor of a Governmental Party in respect of IP Rights developed during the performance of a Government Contract with such Governmental Party to the extent that such license was (A) required by the Federal Acquisition Regulation or (B) contemplated by the Federal Acquisition Regulation and included in such Government Contract if the Borrower reasonably determines that such license was necessary or advisable in order to procure such Government Contract;
(h) concurrently with the acquisition of any surrender fixed or waiver capital assets, the sale and leaseback thereof so long as such lease is an operating lease and such acquisition, sale and leaseback transaction was entered into in order to obtain favorable governmental pricing of contractual rights such assets; and
(i) Dispositions by the Borrower and its Subsidiaries not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition, no Default shall exist or would result from such Disposition, (ii) the settlementaggregate fair market value of all property Disposed of in reliance on this clause (i) during the term of this Agreement shall not exceed 15% of the consolidated total assets of the Borrower in any one fiscal year and 20% of the consolidated total assets of the Borrower in the aggregate since the Restatement Closing Date (in each case, release determined as of the date of the most recently delivered financial statements pursuant to Section 6.01) and (iii) the price for such asset shall be paid to the Borrower or surrender such Subsidiary for at least 80% cash consideration; provided, however, that any (x) Disposition pursuant to Section 7.05(a)(ii), Section 7.05(b) through Section 7.05(f) (other than Section 7.05(d) and Section 7.05(e)(ii)) shall be for fair market value, (y) any Disposition of contractual rights Equity Interests in a Subsidiary pursuant to Section 7.05(i) resulting in a Joint Venture shall only be permitted to the extent that the fair market value of the remaining Equity Interests in such Joint Venture is an Investment permitted under Section 7.03(g), and (z) any Disposition of assets to another Person pursuant to Section 7.05(i) the consideration for which are Equity Interests or litigation claims (including other interests of another Person resulting in torta Joint Venture, shall only be permitted to the extent the fair market value of such assets would constitute an Investment permitted under Section 7.03(g); provided, further, that no assets shall be Disposed of under Section 7.05(i) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply connection with any order of any Governmental Authority or any applicable requirement of Lawan asset securitization transaction.
Appears in 2 contracts
Samples: Credit Agreement (Alliant Techsystems Inc), Credit Agreement (Alliant Techsystems Inc)
Dispositions. Make any Disposition or enter into of any agreement to make any Disposition, of its property except:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(ed) Dispositions of Equity Interests of property by any Property Level SubsidiariesRestricted Subsidiary to the Borrower or to a Restricted Subsidiary (including any such Dispositions effected pursuant to a merger, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05liquidation or dissolution); provided that if the transferor of such property is a Guarantor or the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect the transferee thereof must either be the Borrower or a Guarantor or (ii) to the Net Cash Proceeds of extent such Dispositiontransaction constitutes an Investment, such transaction is permitted under Section 7.02;
(fe) To the extent constituting Dispositions, (i) Investments Dispositions permitted by Section 7.03, 7.04 (iiso long as any Disposition pursuant to a liquidation permitted pursuant to Section 7.04(b)(ii) Restricted Payments permitted by Section 7.06, shall be done on a pro rata basis among the equity holders of the applicable Subsidiary) and (iii) 7.06 and Liens permitted by Section 7.01;
(f) Dispositions by the Borrower and its Restricted Subsidiaries of property pursuant to sale-leaseback transactions; provided that (i) Any Loan Party may make a Disposition to any other Loan Party the fair market value of all property so Disposed of shall not exceed $25,000,000 from and after the Closing Date and (ii) any the purchase price for such property shall be paid to the Borrower or such Restricted Subsidiary or Controlled JV Subsidiary for not less than 75% cash consideration;
(other than a Loan Partyg) Dispositions of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andCash Equivalents;
(h) Parent Dispositions of accounts receivable in connection with the collection or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:compromise thereof;
(i) Dispositions in the ordinary course leases, subleases, licenses or sublicenses of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease property in the ordinary course of business and (ii) any surrender or waiver which do not materially interfere with the business of contractual rights or Holdings, the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,Borrower and its Restricted Subsidiaries;
(viij) transfers of property subject to Casualty Events upon receipt of the Net Cash Proceeds of such Casualty Event;
(k) Dispositions of property subject by the Borrower and its Restricted Subsidiaries not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition, no Event of Default shall exist or would result from such Disposition, (ii) the aggregate book value of all property Disposed of in reliance on this clause (k) shall not exceed $50,000,000 and (iii) the purchase price for such property (if in excess of $5,000,000) shall be paid to foreclosurethe Borrower or such Restricted Subsidiary for not less than 75% cash consideration;
(l) Dispositions consisting of the abandonment of IP Rights which is not otherwise prohibited by the terms of the Loan Documents;
(m) Dispositions of Investments in Joint Ventures, casualtyto the extent required by, eminent domain or condemnation proceedings made pursuant to buy/sell arrangements between the joint venture parties forth in, joint venture arrangements and similar binding arrangements in effect on the Closing Date; and
(including n) Dispositions of the Borrower's interest in lieu thereof Xxxxxxxxx-Xxxx Associates Holdings, LLC. provided that any Disposition of any property pursuant to this Section 7.05 (except pursuant to Sections 7.05(d) and (e)), shall be for no less than the fair market value of such property at the time of such Disposition. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing. Notwithstanding the foregoing, none of Holdings, the Borrower or any similar proceeding),
(viii) Dispositions made to comply with any order of their Restricted Subsidiaries shall Dispose of any Governmental Authority or any applicable requirement of Law.their respective assets to Finance Co.
Appears in 2 contracts
Samples: Credit Agreement (Refco Inc.), Credit Agreement (Refco Information Services, LLC)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under inventory in the ERF Programordinary course of business;
(c) Dispositions of inventory equipment or real property in arms-length transactions in the ordinary course of business;
(d) Dispositions of equipment property to the Borrower or to a Guarantor;
(e) Dispositions expressly permitted by Section 7.04;
(f) (i) non-core assets exclusive licenses of IP Rights in the ordinary course of business in connection with Franchise Agreements and substantially consistent with past practice, (ii) transfer of trademarks to the extent Joint Venture Entities and Subsidiaries that are not Loan Parties so long as such trademarks relate exclusively to the operation of Restaurants by such Person outside the United States and (iii) licenses of trademarks, trade secrets or copyrights to the Joint Venture Entities and Subsidiaries that are not Loan Parties which are necessary for the operation of Restaurants by such Person outside the United States;
(g) other Dispositions of assets in arms-length transactions so long as (1) at the time of such Disposition, no Default or Event of Default shall exist or be continuing or shall result from such Disposition, (1) the consideration received in connection therewith consists of not less than 75% of cash and Cash Equivalents, and (1) the aggregate proceeds from assets Disposed of pursuant to this clause (g) during any Fiscal Year shall not exceed $5,000,000;
(h) the sale or issuance of (i) such property is replaced with similar replacement property any Subsidiary’s Equity Interests to the Borrower or exchanged for credit against the purchase price of similar replacement property and any Guarantor or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyany Minority Interest;
(ei) Dispositions the leasing or sub-leasing of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositionsreal property or entering into occupancy agreements with respect thereto, in each case, that would not otherwise permitted materially interfere with the required use of such real property by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, or its Subsidiaries and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions is in the ordinary course of business at arm’s length and on market terms;
(j) Dispositions of restaurants or other assets acquired pursuant to Permitted Acquisitions that have not been rebranded as a “Noodles & Company” restaurant; and
(Ak) receivables any transfer of assets of any Loan Party to any Person other than a Loan Party in exchange for assets of such Person as part or all of the purchase price in a Permitted Acquisition; provided, that (i) such exchange is consummated on an arm’s length basis for fair consideration, and (ii) the provisions relating to a Permitted Acquisition shall otherwise have been complied with, including with respect to Section 6.12 hereof; and
(l) Dispositions of Leases, leasehold interests, inventory or furniture, fixtures and equipment in connection with the collection, settlement or compromise thereof Identified Restaurant Closures/Re-Franchisings (including any discount and/or forgiveness thereof2017), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Law.
Appears in 2 contracts
Samples: Credit Agreement (NOODLES & Co), Securities Purchase Agreement (NOODLES & Co)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property in the ordinary course of business, or property determined by Borrower to no longer be necessary used or useful in the business or operations of the Borrower or its Subsidiaries or JV Subsidiariessuch Subsidiary, in each case whether now owned or hereafter acquired, ;
(b) Dispositions of inventory and Cash Equivalents in the ordinary course of business;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(d) Dispositions of equipment or non-core assets in the ordinary course of business real property other than through a lease transaction to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property or to Indebtedness incurred to acquire such replacement property; and Dispositions of equipment or real property through a lease transaction to the extent that such lease is on fair and reasonable terms in an arm’s-length transaction;
(d) Dispositions of property by any Subsidiary to the Borrower or any other Subsidiary or by the Borrower to any Subsidiary;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such DispositionDispositions permitted by Section 7.04 and (ii) Dispositions for fair market value in a transaction in exchange for which an Investment permitted by Section 7.03 is received;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary licenses or Controlled JV Subsidiary (other than a Loan Party) sublicenses of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease IP Rights in the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,substantially consistent with past practice;
(viig) Dispositions by the Borrower and its Subsidiaries not otherwise permitted under this Section 7.05; provided that at the time of such Disposition, no Default or Event of Default shall have occurred, be continuing or would result from such Disposition;
(h) Dispositions of Permitted Securitization Transferred Assets pursuant to any Permitted Receivables Facility;
(i) Dispositions of accounts receivable in connection with the compromise, settlement or collection thereof consistent with past practice;
(j) Dispositions of property subject to foreclosurethe extent that such property constitutes an Investment permitted by Section 7.03(d)(ii), casualty(l) or (m) or another asset received as consideration for the Disposition of any asset permitted by this Section 7.05; and
(k) Dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation proceedings (including in lieu thereof or similar proceeding of, any property or asset of the Borrower or any similar proceedingSubsidiary; provided, however, that any of the foregoing Dispositions (other than any Disposition pursuant to clause (a),
, (viiid), (e)(i) Dispositions made to comply with any order or (k) of any Governmental Authority this Section 7.05) shall be for fair market value, as determined reasonably and in good faith by, as the case may be, the Borrower or any the applicable requirement of LawSubsidiary.
Appears in 2 contracts
Samples: Credit Agreement (Ashland Inc.), Credit Agreement (Ashland Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete obsolete, damaged, worn out, used or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariessurplus property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries;
(b) Dispositions of furniture, fixtures (i) inventory and (ii) equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory and goods held for sale in the ordinary course of business;
(di) any exchange or swap of assets, or lease, assignment or sublease of any real property or personal property for like property for use in a business not in contravention with Section 6.19 and (ii) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (ix) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (iiy) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property among the Borrower and the Restricted Subsidiaries; provided that if the transferor of such property is a Loan Party (i) the transferee thereof must be a Loan Party, or if it is a newly incorporated entity, such transferee must become a Loan Party (or amalgamate with a Loan Party) within thirty (30) days of such Disposition, (ii) the Investment arising from such Disposition must be a permitted Investment in accordance with Section 7.02 (other than Section 7.02(e)) or (iii) the consideration paid in connection therewith shall be cash or Cash Equivalents paid contemporaneous with the consummation of the transaction and the aggregate fair market value (as determined in good faith by the Borrower) of the property sold, leased, licensed, transferred or otherwise disposed by Loan Parties to Non-Loan Parties in reliance of this clause (d)(iii) in any fiscal year shall not exceed C$10,000,000;
(e) Dispositions permitted by Section 7.02 (other than Section 7.02(e)), Section 7.04 (other than Section 7.04(c) or (h)), Section 7.06 (other Section 7.06(d)) and Section 7.12 and Liens permitted by Section 7.01 (other than Section 7.01(m)(ii));
(f) Dispositions with respect to property built or acquired by the Borrower or any Restricted Subsidiary after the Closing Date, including pursuant to sale-leaseback transactions; provided that, the Net Cash Proceeds thereof are applied in accordance with Section 2.05(b)(ii);
(g) Dispositions of (i) Cash Equivalents and (ii) other current assets that were Cash Equivalents when the original Investment in such assets was made and which thereafter fail to satisfy the definition of Cash Equivalents;
(h) leases, subleases, licenses or sublicenses (including non-exclusive licenses or non-exclusive sublicenses of IP Rights or software, including the provision of software under an open source license, but excluding licenses of IP Rights tantamount to a sale, material exclusive licenses of IP Rights and material exclusive sublicenses of IP Rights), in each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole;
(i) Dispositions of property subject to Casualty Events;
(j) Dispositions of property not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to a commitment entered into at a time when no Event of Default exists), no Event of Default shall exist or would result from such Disposition and (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of C$15,000,000, the Borrower or any of the Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents (in each case, free and clear of all Liens, other than Liens permitted by Section 7.01); provided, however, that for the purposes of this clause (ii), (A) any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of the Borrower or such Restricted Subsidiary that (i) are assumed by the transferee with respect to the applicable Disposition, (ii) for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing or (iii) are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Borrower or its Restricted Subsidiaries), (B) any securities, notes or other obligations or assets received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within one hundred and eighty (180) days following the closing of the applicable Disposition and (C) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value as determined by the Borrower in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is at that time outstanding since the First Amendment Effective Date, not in excess of the greater of (i) C$30,000,000 and (ii) 1.2% of Consolidated Total Assets determined at the time of incurrence of such Disposition (calculated on a Pro Forma Basis), with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(k) Dispositions of Investments in Joint Ventures or any Subsidiary that is not Wholly Owned to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture or similar parties set forth in joint venture arrangements and/or similar binding arrangements;
(l) Dispositions of accounts receivable in connection with the collection, compromise or settlement thereof or in bankruptcy or similar proceedings;
(m) any issuance or sale of Equity Interests in, or sale of Indebtedness or other securities of, an Unrestricted Subsidiary;
(n) to the extent allowable under Section 1031 of the Code (or comparable provision of Law of any Property Level Subsidiaries, any Hotel Properties and other Dispositionsforeign jurisdiction and, in each case, not otherwise permitted any successor provision), any exchange of like property for use in any business conducted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with or any of the applicable requirements Restricted Subsidiaries that is not in contravention of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition6.19;
(fo) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01unwinding of any Cash Management Obligations or Swap Contract;
(ip) Any Loan Party may make a Disposition to any sales or other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party dispositions by the Borrower or any other Subsidiary or Controlled JV Restricted Subsidiary of any Loan Party; and
(h) Parent assets in connection with the closing or any Subsidiary sale of an office, facility or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions other location in the ordinary course of business of the Borrower and the Restricted Subsidiaries, which consist of leasehold interests in the premises of such office, facility or other location, the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such office, facility or other location; provided that as to each and all such sales and closings, (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), no Event of Default shall result therefrom and (B) equipment, (C) other current assets or (D) immaterial assets,such sale shall be on commercially reasonable prices and term in a bona fide arm’s length transaction;
(iiq) Dispositions, the lapse or abandonment (including failure to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual propertymaintain) in the ordinary course of business,
(v) Dispositions business of cash and/or Cash Equivalents,
(vi) any registrations or applications for registration of any (i) any termination of any lease intellectual property rights that are not necessary or desirable in the ordinary course conduct of the business and of the Borrower or any Restricted Subsidiaries, or (ii) immaterial intellectual property rights that in the good faith determination of the Borrower are no longer economically practicable or commercially desirable to maintain or use in the business of the Borrower and the Restricted Subsidiaries (taken as a whole);
(r) any Disposition (i) arising from foreclosure, casualty, condemnation, expropriation or any similar action or transfers by reason of eminent domain with respect to any property or other asset of the Borrower or any of its Restricted Subsidiaries or (ii) by reason of the exercise of termination rights under any lease, sublease, license, sublicense, concession or other agreement;
(s) any surrender or waiver of contractual rights or the settlement, release release, recovery on or surrender of contractual rights or litigation other claims of any kind;
(including in tortt) the discount of accounts receivable or notes receivable in the ordinary course of business,business or the conversion of accounts receivable to notes receivable or Investments permitted under this Agreement, in each case in connection with the collection or compromise thereof;
(viiu) any Disposition of assets of the Borrower or any Restricted Subsidiary or sale or issuance of Equity Interests of any Restricted Subsidiary, which assets or Equity Interests so Disposed have an aggregate fair market value (as determined in good faith by the Borrower) of less than C$10,000,000 in the aggregate for any fiscal year;
(v) any grant in the ordinary course of business of (i) any non-exclusive license of patents, trademarks, software, know-how, copyrights, or any other intellectual property rights, including, but not limited to, grants of franchises or non-exclusive licenses, franchise or non-exclusive license master agreements and/or area development agreements, or (ii) any Permitted Exclusive License;
(w) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceedingcontemplated on the First Amendment Effective Date and set forth on Schedule 7.05(w),;
(viiix) Dispositions required to be made to comply with any the order of any Governmental Authority or applicable Laws;
(y) [reserved];
(z) Dispositions of real property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, members of management, employees or consultants;
(aa) [reserved];
(bb) de minimis amounts of equipment provided to employees;
(cc) the Borrower and any applicable requirement Restricted Subsidiary may (i) convert any intercompany Indebtedness to Equity Interests; (ii) settle, discount, write off, forgive or cancel any intercompany Indebtedness or other obligation owing by the Borrower or any Restricted Subsidiary and (iii) settle, discount, write off, forgive or cancel any Indebtedness owing by any present or former consultants, directors, officers or employees of Lawthe Borrower (or any direct or indirect parent thereof) or any Subsidiary or any of their successors or assigns; and
(dd) Dispositions in the nature of asset swaps conducted on an arms-length basis with bona fide third parties unaffiliated with a Borrower or any Affiliate of a Borrower; provided, that no such asset swap may be made at any time that a Specified Default has occurred and is continuing; provided that any Disposition of any property pursuant to Xxxxxxx 0.00(x), (x), (x)(xxx), (x), (x), (x) and (dd), shall be for no less than the fair market value of such property at the time of such Disposition as determined by the Borrower in good faith. To the extent any Collateral is Disposed of as permitted by this Section 7.05 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 2 contracts
Samples: Credit Agreement (GFL Environmental Inc.), Credit Agreement (GFL Environmental Holdings Inc.)
Dispositions. Make The Borrower will not, and will not permit any Disposition or enter into any agreement to of its Subsidiaries to, make any Disposition, except:
(a) Dispositions of obsolete or worn out Property and Dispositions of property or property determined by Borrower to no longer be necessary used or useful in the conduct of the business or operations of the Borrower or its Subsidiaries or JV and the Subsidiaries, whether now owned or hereafter acquiredin each case, in the ordinary course of business;
(b) Dispositions of furniture, fixtures inventory and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory immaterial assets in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business Property to the extent that (i) such property Property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and Property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyProperty;
(d) Dispositions of Property to the Borrower or to a Subsidiary;
(e) Dispositions permitted by Sections 6.03 and 6.04 and Liens permitted by Section 6.02;
(f) Dispositions of cash and Cash Equivalents;
(g) Dispositions of accounts receivable in connection with the collection or compromise thereof (other than in connection with financing transactions);
(h) leases, subleases, licenses or sublicenses, in each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries;
(i) transfers of Property to the extent subject to Casualty Events;
(j) any Disposition of Property; provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default exists), no Event of Default shall exist or would result from such Disposition, (ii) at the time of any such Disposition, the aggregate net book value of all property Disposed of in reliance on this clause (j) in any four fiscal quarter period of the Borrower (including such Disposition) would not exceed (x) 7.5% of Consolidated Total Assets (determined as of the most recently ended fiscal quarter of the Borrower for which financial statements have been delivered pursuant to Section 5.01(a) or (b)) and (y) 20.0% of Consolidated Total Assets (determined as of the most recently ended fiscal quarter of the Borrower for which financial statements have been delivered pursuant to Section 5.01(a) or (b)) over the life of this Agreement and (iii) with respect to any Disposition pursuant to this clause (j) the Borrower or a Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (iii), any liabilities (as shown on the Borrower’s most recent consolidated balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Subsidiary, other than Subordinated Indebtedness or liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Subsidiaries shall have been validly released by all applicable creditors in writing shall be deemed to be cash consideration;
(k) Dispositions of Investments in, and issuances of any Equity Interests in, joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements; and
(l) except as set forth in the immediately succeeding proviso, any Disposition made during a Collateral/Covenant Suspension Period; provided, that during a Collateral/Covenant Suspension Period, the Borrower and any Guarantor that is a Material Subsidiary shall not, in any event (x) make any Disposition of all or substantially all Property of such Person (on a consolidated basis) or (y) make any Disposition of real property or the Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other DispositionsSubsidiary of the Borrower owning real property unless, in each casethe case of this clause (y), not otherwise permitted by (A) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default exists), no Event of Default shall exist or would result from such Disposition, (B) at the time of any such Disposition, the aggregate net book value of all real property Disposed of in reliance on this Section 7.05 clause (y) (including, for the avoidance of doubt, Dispositions in excess the case of any monetary limitations as set forth in this Section 7.05); provided that Disposition of Equity Interests of a Subsidiary of the Borrower complies with Borrower, the applicable requirements aggregate net book value of Section 2.04(ball real property owned by such Subsidiary)
(i1) in any four fiscal quarter period of the Borrower (including such Disposition) would not exceed 10.0% of Consolidated Total Assets as of the most recently ended fiscal quarter of the Borrower for which financial statements have been delivered pursuant to Section 5.01(a) or (b) and (2) over the life of this Agreement, 25.0% of Consolidated Total Assets as of the most recently ended fiscal quarter of the Borrower for which financial statements have been delivered pursuant to Section 5.01(a) or (b) and (C) with respect to any Disposition pursuant to this clause (y) the Net Cash Proceeds Borrower or a Subsidiary shall receive not less than 75% of such Disposition;
consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (fC), any liabilities (as shown on the Borrower’s most recent consolidated balance sheet provided hereunder or in the footnotes thereto) To of the extent constituting DispositionsBorrower or such Subsidiary, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) Subordinated Indebtedness or liabilities that are by their terms subordinated to the payment in cash of a Loan Party may make a the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Subsidiaries shall have been validly released by all applicable creditors in writing shall be deemed to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Partybe cash consideration; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, provided that solely to the extent required pursuant to the terms that any Disposition of any agreement with respect to a JV Subsidiary Property is classified under Sections 6.11(j) and (includingl), but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions the portion of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater such Disposition so classified thereunder shall be for no less than $10,000,000,
(iv) leases and/or licenses the Fair Market Value of Hotel Properties and assets related thereto (including, without limitation, intellectual property) such Property at the time of such Disposition in the ordinary course good faith determination of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of LawBorrower.
Appears in 2 contracts
Samples: Credit Agreement (Caseys General Stores Inc), Credit Agreement (Caseys General Stores Inc)
Dispositions. Make any Disposition (other than any property which, at the time of any Disposition, constitutes Unrestricted Margin Stock) or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete obsolete, surplus or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business real property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by the Company or any of its Subsidiaries to the Company or any of its Subsidiaries;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Dispositionlisted on Schedule 7.04;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01Dispositions pursuant to a Permitted Securitization;
(ig) Any Loan Party may make a Disposition Dispositions by the Company and its Subsidiaries of property pursuant to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Partysale-leaseback transactions; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
Dispositions by the Company and its Subsidiaries not otherwise permitted under this Section 7.04; provided that (i) Dispositions in at the ordinary course time of business of (A) receivables in connection with the collectionsuch Disposition, settlement no Default exists or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
would result from such Disposition and (ii) Dispositionsthe aggregate book value of all property Disposed of in reliance on this clause (h) in any period of twelve consecutive months after the Closing Date shall not exceed 10% of the book value of the total consolidated assets of the Company and its Subsidiaries (including the Target and its Subsidiaries) in accordance with GAAP as at the beginning of such twelve-month period (based on the most recent financial statements of the Company prior to the beginning of such twelve-month period that have been delivered pursuant to Section 6.01 and, to the extent required pursuant that such financial statements do not include the consolidated assets of the Target and its Subsidiaries, calculated on a Pro Forma Basis to include the terms assets of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar partiesthe Target and its Subsidiaries based on the most recent available financial statements of the Target),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Law.
Appears in 2 contracts
Samples: Term Loan Agreement (Thermo Fisher Scientific Inc.), Term Loan Agreement (Thermo Fisher Scientific Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property or and Dispositions of property determined by Borrower to no longer be necessary used or useful in the conduct of the business or operations of the Borrower or and its Subsidiaries or JV Restricted Subsidiaries, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furniture, fixtures and equipment inventory or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory Cash Equivalents in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business real property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by any Restricted Subsidiary to the Borrower or to a Restricted Subsidiary; provided that if the transferor of such property is a Guarantor, the transferee thereof must be a Loan Party;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition7.04;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, 7.06 and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(ig) Dispositions in the ordinary course of business of (A) accounts receivables in connection with the collection, settlement collection or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,;
(vh) Dispositions grants of cash and/or Cash Equivalents,
Leases, subleases, licenses or sublicenses (vi) (i) any termination including the provision of any lease software under an open source license), easements, rights of way or similar rights or encumbrances in each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Restricted Subsidiaries;
(i) transfers of property that has suffered a casualty (constituting a total loss or constructive total loss of such property) upon receipt of the Insurance Proceeds of such casualty;
(j) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) Dispositions by the Borrower and its Restricted Subsidiaries not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition, no Default shall exist or would result from such Disposition, and (ii) any surrender or waiver the aggregate book value of contractual rights or the settlement, release or surrender all property Disposed of contractual rights or litigation claims in reliance on this clause (including in tortk) in any fiscal year shall not exceed $5,000,000 on the ordinary course first day of business,the fiscal year most recently ended at the time of such determination;
(viil) Dispositions by the Borrower and its Restricted Subsidiaries of property subject pursuant to foreclosuresale-leaseback transactions, casualtyprovided that the fair market value of all property so Disposed of shall not exceed $7,500,000 during any fiscal year; and
(m) Dispositions by the Borrower and its Restricted Subsidiaries not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition, eminent domain no Default shall exist or condemnation proceedings would result from such Disposition, (including ii) the aggregate book value of all property Disposed of in lieu thereof reliance of this clause (m) in any fiscal year (A) ending prior to the IPO Closing Date, shall not exceed $5,000,000, and (B) ending on or after the IPO Closing Date, shall not exceed $10,000,000, and (iii) at least 75% of the purchase price for such asset shall be paid to the Borrower or such Restricted Subsidiary solely in cash, provided, however, that any Disposition pursuant to Section 7.05(a) through Section 7.05(m) shall be for fair market value, and provided further, however, the Borrower shall make the prepayment or reinvestment of proceeds of any Disposition under Section 7.05(i) through (m) pursuant to Section 2.05. Notwithstanding anything to the contrary herein, the Borrower may sell, grant or otherwise issue Equity Interests to members of management of the Borrower or any Subsidiary pursuant to stock option, stock ownership, stock incentive or similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Lawplans.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (JP Energy Partners LP)
Dispositions. Make The Borrower will not, and will not permit any Disposition or enter into any agreement to Subsidiary to, make any Disposition, except:
(a) Dispositions of obsolete or worn out Property and Dispositions of property or property determined by Borrower to no longer be necessary used or useful in the conduct of the business or operations of the Borrower or its Subsidiaries or JV and the Subsidiaries, whether now owned or hereafter acquiredin each case, in the ordinary course of business;
(b) Dispositions of furnitureinventory and immaterial assets, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in each case, in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business Property to the extent that (i) such property Property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and Property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyProperty;
(d) Dispositions of Property to the Borrower or to a Subsidiary;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) Dispositions permitted by Sections 6.04 and 6.05 and (ii) Liens permitted by Section 6.02 and (iii) Dispositions of Receivables and Permitted Receivables Related Assets in connection with respect to the Net Cash Proceeds of such DispositionPermitted Receivables Facilities;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, Dispositions of cash and (iii) Liens permitted by Section 7.01Cash Equivalents;
(ig) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary Dispositions of accounts receivable in connection with the collection or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andcompromise thereof;
(h) Parent leases, subleases, licenses or any Subsidiary or Controlled JV Subsidiary of Parent may make or effectsublicenses, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease each case in the ordinary course of business and (ii) any surrender or waiver which do not materially interfere with the business of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in Borrower and the ordinary course of business,Subsidiaries;
(viii) transfers of Property to the extent subject to Casualty Events;
(j) Dispositions of property subject other Property by the Borrower and its Subsidiaries with an aggregate fair market value (as determined in good faith by the Borrower) for all such Dispositions in any fiscal year not to foreclosure, casualty, eminent domain or condemnation proceedings exceed 15% of the Consolidated Tangible Assets as at the last day of the immediately preceding fiscal year with unused amounts from any fiscal year being available for additional Dispositions in the next succeeding fiscal year only (including it being understood that any Disposition in lieu thereof or any similar proceedingfiscal year pursuant to this clause (j) shall be deemed first to have utilized any amount carried forward from any prior year before being applied to the 15% limitation referred to above for such fiscal year),;
(viiik) Dispositions made to comply with any order of Investments in, and issuances of any Governmental Authority Equity Interests in, joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(l) any applicable requirement Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in its best interests and not materially adverse to the Lenders and, if such Subsidiary is a Loan Party, such Loan Party’s assets and property are transferred to another Loan Party; and
(m) sale and leasebacks of Lawproperties acquired following the Closing Date within 180 days of the acquisition thereof; provided that for the purpose of making all calculations under Section 6.10(j), the Borrower shall use the fair market value of such Property at the time of such Disposition in the good faith determination of the Borrower.
Appears in 2 contracts
Samples: Restatement Agreement (Constellation Brands, Inc.), Credit Agreement (Constellation Brands, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete obsolete, worn out, used or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariessurplus property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of Holdings and the Restricted Subsidiaries;
(b) Dispositions of furniture, fixtures inventory and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory goods held for sale in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property; provided that to the extent the property being transferred constitutes Term Loan First Lien Collateral, such replacement property shall constitute Term Loan First Lien Collateral;
(d) Dispositions of property to Holdings or a Restricted Subsidiary; provided that if the transferor of such property is a Loan Party (i) the transferee thereof must be a Loan Party or (ii) such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.02 (other than pursuant to clause (4) of the definition of Permitted Investments);
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 Sections 7.02 (includingother than pursuant to clause (4) of the definition of Permitted Investments), for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, 7.04 and (iii) 7.06 and Liens permitted by Section 7.01;
(if) Any Loan Party Dispositions of property pursuant to sale leaseback transactions; provided that to the extent the aggregate amount of Net Cash Proceeds received by Holdings or a Restricted Subsidiary from Dispositions made pursuant to this Section 7.05(f) exceeds $60,000,000, all Net Cash Proceeds in excess of such amount shall be applied to prepay Loans in accordance with Section 2.03(b)(ii)(A) and may make not be reinvested in the business of the Borrower or a Disposition to any other Loan Party and Restricted Subsidiary;
(iig) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) Dispositions of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andCash Equivalents;
(h) Parent leases, subleases, licenses or any Subsidiary or Controlled JV Subsidiary sublicenses (including the provision of Parent may make or effectsoftware under an open source license), in each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as applicable:a whole;
(i) transfers of property subject to Casualty Events upon receipt of the Net Cash Proceeds of such Casualty Event;
(j) Dispositions of property not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Default exists), no Default shall exist or would result from such Disposition; (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $10,000,000, Holdings or any of the Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (ii), (A) any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities constituting Subordinated Indebtedness, that are assumed by the transferee with respect to the applicable Disposition and for which Holdings and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by Holdings or such Restricted Subsidiary from such transferee that are converted by Holdings or such Restricted Subsidiary into cash (to the extent of the cash received) within one hundred and eighty (180) days following the closing of the applicable Disposition and (C) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value as determined by the Borrower in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is at that time outstanding, not in excess of the greater of $15,000,000 and 1.25% of Total Assets at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash; and (iii) to the extent the aggregate amount of Net Cash Proceeds received by Holdings or a Restricted Subsidiary from Dispositions made pursuant to this Section 7.05(j) exceeds $150,000,000, all Net Cash Proceeds in excess of such amount shall be applied to prepay Loans in accordance with Section 2.03(b)(ii)(A) and may not be reinvested in the business of the Borrower or a Restricted Subsidiary;
(k) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(l) Dispositions of accounts receivable in connection with the collection or compromise thereof;
(m) any issuance or sale of Equity Interests in, or sale of Indebtedness or other securities of, an Unrestricted Subsidiary;
(n) to the extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by the Borrower or any of its Restricted Subsidiaries that is not in contravention of Section 7.07; provided that to the extent the property being transferred constitutes Term Loan First Lien Collateral, such replacement property shall constitute Term Loan First Lien Collateral;
(o) the unwinding of any Hedging Obligations;
(p) any Disposition of Securitization Assets to a Securitization Subsidiary;
(q) the lapse or abandonment in the ordinary course of business of (A) receivables in connection with the collection, settlement any registrations or compromise thereof (including applications for registration of any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,IP Rights;
(iir) Dispositions, to the extent required pursuant to the terms licensing or sub-licensing of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture intellectual property or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) other general intangibles in the ordinary course of business,, other than the licensing of intellectual property on a long-term basis;
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (iis) any surrender or waiver of contractual contract rights or the settlement, release or surrender of contractual contract rights or other litigation claims (including in tort) in the ordinary course of business,; and
(viit) Dispositions the issuance of property subject directors’ qualifying shares and shares issued to foreclosureforeign nationals as required by applicable law. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than a Loan Party, casualtysuch Collateral shall be sold free and clear of the Liens created by the Loan Documents, eminent domain or condemnation proceedings (including and, if requested by the Administrative Agent, upon the certification by the Borrower that such Disposition is permitted by this Agreement, the Administrative Agent shall be authorized to take any actions deemed appropriate in lieu thereof or any similar proceeding),
(viii) Dispositions made order to comply with any order of any Governmental Authority or any applicable requirement of Laweffect the foregoing.
Appears in 2 contracts
Samples: Credit Agreement (Nexeo Solutions Holdings, LLC), Credit Agreement (Nexeo Solutions Finance Corp)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of excess, surplus, obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business real property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such similar replacement property;
(d) Dispositions of property by any Subsidiary to the Company or to another Subsidiary; provided that if the transferor of such property is a Subsidiary Guarantor, the transferee thereof must either be the Company or a Subsidiary Guarantor;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this other than Section 7.057.05(e); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To Dispositions of assets within 365 days after the extent constituting Dispositions, acquisition thereof if (i) Investments permitted by Section 7.03such assets are outside the principal business areas to which the assets acquired, (ii) Restricted Payments permitted by Section 7.06taken as a whole, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party relate, and (ii) any Subsidiary such assets are sold or Controlled JV Subsidiary (other than a Loan Party) disposed of a Loan Party may make a Disposition to any Loan Party for Cash or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andconsideration which represents the fair market value thereof;
(hg) Parent or any Subsidiary or Controlled JV Subsidiary in order to collect receivables in the ordinary course of Parent may make or effectbusiness, as applicable:
(i) Dispositions resolve disputes that occur in the ordinary course of business of (A) receivables or engage in connection transactions with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) government agencies in the ordinary course of business,, the Company and its Subsidiaries may Dispose of, discount or otherwise compromise for less than the face value thereof, notes or accounts receivable, so long as no such Disposition, discount or other compromise gives rise to any Indebtedness, any Lien on any note or account receivable, or is made as part of any account receivable securitization program;
(vh) Dispositions of cash and/or Cash Equivalents,shares of Equity Interests of any of its Subsidiaries in order to qualify members of the board of directors or equivalent governing body of any such Subsidiary if required by applicable Law;
(vi) (i) any termination Dispositions of any lease condemned property to the respective Governmental Authority that has condemned the same (whether by deed in lieu of condemnation or otherwise), and Dispositions of properties that have been subject to a casualty to the respective insurer of such property or its designee as part of an insurance settlement;
(j) Dispositions by the Company and its Subsidiaries of property pursuant to sale-leaseback transactions;
(k) Dispositions of Cash and cash equivalents;
(l) non-exclusive licenses or sublicenses of IP Rights in the ordinary course of business and which do not materially interfere with the business of the Company and its Subsidiaries;
(m) Dispositions by the Company or any of its Subsidiaries of assets in an amount not to exceed $20,000,000 in any single transaction or related series of transactions; and
(n) additional Dispositions by the Company and its Subsidiaries not to exceed an aggregate amount in any fiscal year equal to the Asset Sale Amount in effect for such fiscal year; provided that (i) the consideration received for such Disposition shall be in an amount at least equal to the fair market value thereof; (ii) no Default shall have occurred or be continuing after giving effect thereto; and (iii) if applicable, the proceeds of such Dispositions shall be applied as required by Section 2.05(b); provided further that if any surrender Cash proceeds from a Disposition made pursuant to this subpart (n) that are not required to be used to make a prepayment pursuant to Section 2.05(b) are reinvested in assets used or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) useful in the ordinary course business of business,
(vii) Dispositions the Company and its Subsidiaries during such year, the amount of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including such Cash reinvestment shall increase the Asset Sale Amount for the year in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Lawwhich such reinvestment is made.
Appears in 2 contracts
Samples: Credit Agreement (Urs Corp /New/), Credit Agreement (Urs Corp /New/)
Dispositions. Make (a) Notwithstanding anything to the contrary in this Agreement, except for any Disposition of Shares to Affiliates, OMERS Administration Corporation, or Affiliates of OMERS Administration Corporation, for a period of ninety (90) days after the date hereof without the prior written consent of Prairie, Purchaser agrees not to offer, sell, contract to sell, pledge or otherwise Dispose of, or enter into any agreement to make any Dispositiontransaction which is designed to, except:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to no longer might reasonably be necessary expected to, result in the business Disposition of Shares (whether by actual Disposition or operations effective economic Disposition due to cash settlement or otherwise) by Purchaser or any of Borrower its Affiliates, directly or its Subsidiaries indirectly, including by establishing or JV Subsidiariesincreasing a put equivalent position or liquidating or decreasing a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, whether now owned any Shares or hereafter acquiredany securities that are convertible into, or exercisable or exchangeable for, or that represent the right to receive, the Shares, or publicly announce an intention to effect any such transaction; provided that nothing in this Section 7(a) shall restrict or otherwise modify the ordinary course obligations of business;Prairie set forth in Section 2(a)(i).
(b) Dispositions Until the first date that Purchaser and any Affiliates cease to Beneficially Own in the aggregate at least 5% of furniturethe then-outstanding Common Stock, fixtures Purchaser shall not, and equipment shall cause its Affiliates not to, enter into any Hedging Arrangements. Notwithstanding the foregoing, nothing in this Agreement shall limit the ability of Purchaser or other personal property any of its Affiliates to AINC or an Affiliate thereof enter into any Hedging Arrangement (including short sales) with respect to any date on which the Average VWAP (as defined in the Certificate of Designations of Series A Preferred Stock) is determined, and with respect to such number of shares of Common Stock that is leased back under the ERF Program;Purchaser shall be expected to receive measured by reference to such date.
(c) Dispositions Purchaser may Dispose of inventory Shares to one or more Persons (and such Persons may then Dispose of Shares to one or more Persons), provided that such transferee Person agrees in writing to be bound by the ordinary course of business;terms and conditions, including the restrictions with respect to Purchaser set forth in this Agreement.
(d) Dispositions Purchaser shall not Dispose of equipment or non-core assets any Shares except: (i) pursuant to a registered offering under the Securities Act; (ii) pursuant to Rule 144 (in accordance with the ordinary course of business volume and procedural limitations set forth in Rule 144 to the extent that legally applicable to Purchaser at the time of the sale); or (iiii) such property is replaced with similar replacement property or exchanged for credit against pursuant to an exemption from registration under the purchase price of similar replacement property and (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;Securities Act.
(e) Dispositions For so long as any Holder and its Affiliates Beneficially Own in the aggregate at least 5% of the then-outstanding Common Stock, in connection with any underwritten offering of Equity Interests Securities, such Holder and its Affiliates will agree, upon the request of any Property Level SubsidiariesPrairie, any Hotel Properties and other Dispositionsto enter into a customary lock-up agreement with the managing underwriters of such offering, in each caseprovided, not otherwise permitted by this Section 7.05 (includinghowever, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with lock-up period under such agreement shall not exceed ninety (90) days and shall be no more restrictive than any lock-up arrangement entered into by the applicable requirements officers and directors of Section 2.04(b)
(i) with respect to Prairie or any other Stockholder that holds at least 5% of the Net Cash Proceeds of such Disposition;then-outstanding Common Stock.
(f) To the extent constituting Dispositions, Purchaser shall not Dispose of any Shares to any Person and shall cause its Affiliates not to Dispose of Beneficial Ownership in any Shares (i) Investments permitted by if such Disposition is reasonably likely to require the approval of Federal Energy Regulatory Commission (the “FERC”) under Section 7.03203 of the Federal Power Act (the “FPA”), the approval of the Nuclear Regulatory Commission (“NRC”) or the approval of or notification to any state utility agency under the applicable Laws of such state, and the FERC, the NRC or the relevant state utility agency shall have not issued an order approving such proposed Disposition or accepting any such required notification (or otherwise indicating in writing that no further action will be taken with respect to any required notification), as applicable, or (ii) Restricted Payments permitted if such Disposition is reasonably likely to require the Disposition of any assets of Prairie or any of its Subsidiaries, or to result in the loss of market-based rate authority by Section 7.06, and (iii) Liens permitted any of Prairie’s Subsidiaries or a requirement by Section 7.01;
(i) Any Loan Party may make a Disposition the FERC to implement mitigation measures in order to retain such authority or to impose any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) material limitation on the ability of a Loan Party may make a Disposition to any Loan Party Prairie or any other Subsidiary of its Subsidiaries to conduct their respective businesses or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial own their respective assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Law.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Kansas City Power & Light Co)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to no longer be necessary Cash Equivalents and Inventory in the business or operations Ordinary Course of Borrower or its Subsidiaries or JV Subsidiaries, whether now owned or hereafter acquired, in the ordinary course of businessBusiness;
(b) (i) Dispositions in the Ordinary Course of furniture, fixtures and equipment or other personal Business of property to AINC or an Affiliate thereof that is leased back under obsolete, worn out or no longer useful in the ERF ProgramOrdinary Course of Business and (ii) disposition of other assets, in each case for so long as (x) the aggregate fair market value or a book value, whichever is more, of such equipment, fixed assets and other assets does not exceed the greater of (A) $9,000,000 and (B) 15% of Adjusted Consolidated EBITDA for the four Fiscal Quarter period most recently ended as to which financial statements were required to be delivered pursuant to this Agreement, in any twelve-month period and (y) all proceeds thereof are either (A) remitted to Administrative Agent for application to the Obligations in accordance with Section 2.06(b)(ii) if required thereby or (B) to the extent permitted by the applicable intercreditor or subordination provisions or agreement reasonably satisfactory to the Administrative Agent executed or entered into in connection with Subordinated Indebtedness incurred pursuant to Section 7.01(v) and solely to the extent required by a corresponding mandatory prepayment provision in the applicable documentation governing such Subordinated Indebtedness, remitted to the applicable holders of such Subordinated Indebtedness (or administrative agent for such holders) for application in accordance with such corresponding mandatory prepayment provision;
(c) Dispositions of inventory in the ordinary course of businessany Disposition that constitutes (i) an Investment permitted under Section 7.03, (ii) a Lien permitted under Section 7.02, (iii) a merger, dissolution, consolidation or liquidation permitted under Section 7.04, or (iv) a Restricted Payment permitted under Section 7.06;
(d) such Disposition that results from a casualty or condemnation in respect of such property or assets so long as all proceeds thereof are either (A) remitted to Administrative Agent for application to the Obligations in accordance with Section 2.06(b)(ii) if required thereby or (B) to the extent permitted by the applicable intercreditor or subordination provisions or agreement reasonably satisfactory to the Administrative Agent executed or entered into in connection with Subordinated Indebtedness incurred pursuant to Section 7.01(v) and solely to the extent required by a corresponding mandatory prepayment provision in the applicable documentation governing such Subordinated Indebtedness, remitted to the applicable holders of such Subordinated Indebtedness (or administrative agent for such holders) for application in accordance with such corresponding mandatory prepayment provision;
(e) the sale or discount, in each case without recourse, of accounts receivable arising in the Ordinary Course of Business, but only in connection with the compromise or collection of delinquent accounts or other accounts which, in the applicable Loan Party’s or Subsidiary’s reasonable business judgment, are doubtful of collection,
(f) licenses, sublicenses, leases or subleases granted to third parties in the Ordinary Course of Business;
(g) the lapse, abandonment or other dispositions of Intellectual Property that is, in the reasonable good faith judgment of a Loan Party or Subsidiary, no longer material to the conduct of the business of the Loan Parties or any of their Subsidiaries;
(i) Dispositions among the Loan Parties (other than to Holdings except in respect of dispositions of Equity Interests) or by any Subsidiary to a Loan Party (other than to Holdings except in respect of dispositions of Equity Interests), and (ii) Dispositions by any Subsidiary that is not a Loan Party to another Subsidiary that is not a Loan Party;
(i) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and that is promptly purchased or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyproperty (which replacement property is actually promptly purchased);
(ej) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) the unwinding of any Swap Contract pursuant to its terms;
(l) Foreign Subsidiaries of the Borrowers may sell or dispose of Equity Interests to qualify directors where required by applicable law or to satisfy other requirements of applicable law with respect to the ownership of Equity Interests;
(m) Permitted Sale Leasebacks; and
(n) other Dispositions of property; provided that (i) at least seventy-five percent (75%) of the proceeds of such Disposition in aggregate amount at any Property Level Subsidiariestime in excess of $5,000,000 consist of cash or Cash Equivalents, (ii) the applicable Loan Party receives fair market value for such property (as determined by the Borrowers in good faith), (iii) all proceeds thereof are remitted to Administrative Agent for application to the Obligations in accordance with Section 2.06(b)(ii) if required thereby, and (iv) at the time of such Disposition (other than any Hotel Properties and other Dispositionssuch Disposition made pursuant to a legally binding commitment therefor entered into at a time when no Event of Default then existed), in each case, not otherwise no Event of Default shall exist at the time of or would result from such Disposition. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (Person other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party the Borrowers or any other Subsidiary or Controlled JV Subsidiary Subsidiary, such Collateral shall be sold free and clear of the Liens created by the Loan Documents and the Administrative Agent shall be authorized to take and shall take any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions actions deemed appropriate in order to effect the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Lawforegoing.
Appears in 2 contracts
Samples: Credit Agreement (e.l.f. Beauty, Inc.), Credit Agreement (e.l.f. Beauty, Inc.)
Dispositions. Make The Borrower will not, and will not permit any Disposition or enter into any agreement to Restricted Subsidiary to, make any Disposition, except:
(a) Dispositions of obsolete or worn out Property and Dispositions of property or property determined by Borrower to no longer be necessary used or useful in the conduct of the business or operations of the Borrower or its Subsidiaries or JV and the Restricted Subsidiaries, whether now owned or hereafter acquiredin each case, in the ordinary course of business;
(b) Dispositions of furniture, fixtures inventory and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory immaterial assets in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business Property to the extent that (i) such property Property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and Property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyProperty;
(d) Dispositions of Property (i) to the Borrower or to a Restricted Subsidiary; provided that if the transferor of such Property is a Loan Party, the transferee thereof must be a Loan Party, (ii) to the extent such transaction constitutes an Investment permitted under Section 6.05 and (iii) consisting of Equity Interests of non-Loan Parties to other non-Loan Parties;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Sections 6.03, 6.04 and 6.05 and Liens permitted by Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition6.02;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, Dispositions of cash and (iii) Liens permitted by Section 7.01Cash Equivalents;
(ig) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary Dispositions of accounts receivable in connection with the collection or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andcompromise thereof;
(h) Parent leases, subleases, licenses or any Subsidiary or Controlled JV Subsidiary of Parent may make or effectsublicenses, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and the Restricted Subsidiaries;
(i) transfers of Property to the extent subject to Casualty Events;
(j) Dispositions of Investments in, and issuances of any Equity Interests in, joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) any Disposition of Property; provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default exists), no Event of Default shall exist or would result from such Disposition, (ii) at the time of any surrender or waiver such Disposition, the aggregate book value of contractual rights or the settlement, release or surrender all property Disposed of contractual rights or litigation claims in reliance on this clause (k) (including in tortsuch Disposition) would not exceed in the ordinary course aggregate 20.0% of business,the Borrower’s Consolidated Total Assets as of the last day of the most recent fiscal year or fiscal quarter for which financial statements have been delivered pursuant to Section 5.01(a) or (b) and (iii) except in the case of a Permitted Asset Swap, with respect to any Disposition pursuant to this clause (k), the Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (iii), each of the following shall be deemed to be cash: (A) any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of the applicable Disposition and (C) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary from such transferee having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is at that time outstanding, not in excess of $50,000,000, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash consideration;
(viil) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; and
(m) Dispositions of the real property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or set forth on Schedule 6.11; provided that any similar proceeding),
(viii) Dispositions made to comply with any order Disposition of any Governmental Authority or any applicable requirement Property to the extent classified pursuant to Section 6.11(k) shall be for no less than the fair market value of Lawsuch Property at the time of such Disposition in the good faith determination of the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Cable One, Inc.), Credit Agreement (Cable One, Inc.)
Dispositions. Make Neither the Borrower nor any Disposition of the Restricted Subsidiaries shall, directly or enter into any agreement to indirectly, make any Disposition, except:
(a) (i) Dispositions of obsolete or obsolete, worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariessurplus property, including Hydrocarbons, surplus equipment, vehicles and other assets (other than accounts receivables) whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Borrower or any of its Restricted Subsidiaries and (ii) Dispositions of property no longer used or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries outside the ordinary course of business (and for consideration complying with the requirements applicable to Dispositions pursuant to clause (j) below) in an aggregate amount not to exceed $10,000,000;
(b) Dispositions of furniture, fixtures and equipment inventory or goods (or other personal assets, including furniture and equipment) held for sale, intellectual property licensed to customers and immaterial assets (including allowing any registrations or any applications for registration of any immaterial intellectual property to AINC lapse or an Affiliate thereof that is leased back under go abandoned in the ERF Program;
(c) Dispositions ordinary course of inventory business), in each case, in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(ed) Dispositions of Equity Interests of property to the Borrower or any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05)Restricted Subsidiary; provided that if the Borrower complies with the applicable requirements transferor of Section 2.04(b)
such property is a Loan Party, (i) with respect the transferee thereof must be a Loan Party or (ii) if such transaction constitutes an Investment, such transaction is permitted under Section 7.02;
(e) to the Net Cash Proceeds of such Dispositionextent constituting Dispositions, transactions permitted by Sections 7.01, 7.02 (other than Section 7.02(e)), 7.04 (other than Section 7.04(f)) and 7.06;
(f) To the extent constituting Dispositions, [reserved];
(ig) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01Dispositions of Cash Equivalents;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary leases, subleases, licenses or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof sublicenses (including any discount and/or forgiveness thereofthe provision of software under an open source license), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease each case in the ordinary course of business and which do not materially interfere with the business of the Borrower or any of its Restricted Subsidiaries and (ii) Dispositions of intellectual property that do not materially interfere with the business of the Borrower or any surrender of its Restricted Subsidiaries so long as the Borrower or waiver any of contractual its Restricted Subsidiaries receives a license or other ownership rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,to use such intellectual property;
(viii) Dispositions transfers of property subject to foreclosureCasualty Events;
(j) Dispositions of property; provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Default exists), casualtyno Default shall exist or would result from such Disposition and (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $45,000,000, eminent domain or condemnation proceedings (including in lieu thereof the Borrower or any similar proceedingof its Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents (in each case, free and clear of all Liens at the time received, other than nonconsensual Liens permitted by Section 7.01 and Liens permitted by Sections 7.01(a),
, (viiif), (k), (p), (q), (r)(i), (r)(ii), (dd) Dispositions made (only to comply the extent the Obligations are secured by such cash and Cash Equivalents) and (ee) (only to the extent the Obligations are secured by such cash and Cash Equivalents); provided, however, that for the purposes of this clause (j)(ii), the following shall be deemed to be cash: (A) any liabilities (as shown on the Borrower’s (or the Restricted Subsidiaries’, as applicable) most recent balance sheet provided hereunder or in the footnotes thereto) of Borrower’s or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any order securities received by the Borrower or the applicable Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of any Governmental Authority the cash or any Cash Equivalents received) within 180 days following the closing of the applicable requirement of Law.Disposition, and
Appears in 2 contracts
Samples: Term Loan B Credit Agreement (Vine Resources Inc.), Term Loan B Credit Agreement (Vine Resources Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of surplus, obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(ed) Dispositions of Equity Interests of property by any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for Restricted Subsidiary to the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05)Company or to a wholly-owned Restricted Subsidiary; provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to if the Net Cash Proceeds transferor of such Disposition;
(f) To property is a Loan Party, the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make transferee thereof must be a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (if the transferor of such property is a Loan Party other than a Loan Party) of Foreign Obligor, the transferee thereof must be a Loan Party may make other than a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; andForeign Obligor;
(he) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:Dispositions permitted by Section 7.04 and Permitted Liens;
(if) Dispositions in by the ordinary course of business of (A) receivables Company and its Restricted Subsidiaries required to comply with relevant antitrust Laws in connection with the collection, settlement Acquisition or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,Permitted Acquisition;
(iig) Dispositionsleases, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (includingsubleases, but not limited to, buy/sell arrangements between joint venture licenses or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) sublicenses granted in the ordinary course of business,, which could not reasonably be expected to have a Material Adverse Effect;
(vh) Dispositions the sale or other transfer of cash accounts receivable in connection with the securitization thereof and/or Cash Equivalents,factoring arrangements, which sale is non-recourse to the extent customary in securitizations and/or factoring arrangements and consistent with past practice and, to the extent constituting Indebtedness of the Company or any Restricted Subsidiary, within the limits set forth in Section 7.02(f);
(vi) (i) so long as no Default shall have occurred and be continuing, or would result therefrom, other Dispositions in an aggregate amount not to exceed $200,000,000 in any termination of fiscal year; provided that any lease unused amount may be carried over for use in the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,
(vii) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Law.next following fiscal year;
Appears in 2 contracts
Samples: Credit Agreement (Aecom), Credit Agreement (Aecom Technology Corp)
Dispositions. Make The Borrowers will not, and will not permit any Disposition or enter into any agreement to Subsidiary to, make any Disposition, except:
(a) Dispositions of obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariesproperty, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of furniture, fixtures inventory and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory Investments in the ordinary course of business;
(dc) Dispositions of equipment or non-core assets in the ordinary course of business Real Property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by any Subsidiary to the Borrowers or to a Subsidiary Guarantor;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition8.3;
(f) To the extent constituting Dispositionsleases, (i) Investments permitted by Section 7.03licenses, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary subleases or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof sublicenses (including any discount and/or forgiveness thereof), (Bthe provision of open source software under an open source license) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease granted in the ordinary course of business and on ordinary commercial terms that do not interfere in any material respect with the business of the Borrowers or any of their Subsidiaries;
(g) Dispositions of intellectual property rights that are no longer used or useful in the business of the Borrowers and their Subsidiaries;
(h) Restricted Payments permitted by Section 8.5 and Investments permitted by Section 8.6;
(i) Dispositions of Eligible Assets, provided that any such Disposition shall be subject to: (i) demonstration of pro-forma compliance with the Financial Covenants, (ii) prepayment of the Revolving Loans if required by Sections 2.8(a) or (b) and (iii) payment of all reasonable and document costs and expenses incurred by the Administrative Agent related to such Disposition and any surrender or waiver related Collateral release;
(j) Dispositions of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) cash and Cash Equivalents in the ordinary course of business,; and
(viik) Dispositions of property subject Tower Disposition Assets to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Lawa joint venture party identified by Borrower.
Appears in 2 contracts
Samples: Secured Revolving Loan Credit Agreement (StratCap Digital Infrastructure REIT, Inc.), Secured Revolving Loan Credit Agreement (Strategic Wireless Infrastructure Fund Ii, Inc.)
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete obsolete, worn out, used or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiariessurplus property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries;
(b) Dispositions of furnitureinventory and goods held for sale in the ordinary course of business and Dispositions of immaterial assets (including failing to pursue or allowing any registrations or any applications for registration of any IP Rights to lapse or go abandoned in the ordinary course of business if, fixtures and equipment or other personal property to AINC or an Affiliate thereof that in the Borrower’s reasonable opinion, such discontinuance is leased back under desirable in the ERF Programconduct of its business);
(c) Dispositions of inventory in the ordinary course of business;
(d) Dispositions of equipment or non-core assets in the ordinary course of business property to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement propertyproperty (which replacement property is actually promptly purchased);
(i) Dispositions of property to Holdings, the Borrower or a Restricted Subsidiary; provided that if the transferor of such property is a Loan Party (A) the transferee thereof must be a Loan Party or (B) to the extent such transaction constitutes an Investment, such transaction is permitted under Section 7.02; and (ii) Dispositions to Holdings, the Borrower or a Restricted Subsidiary constituting debt forgiveness;
(e) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect Dispositions permitted by Sections 7.02, 7.04 and 7.06, Liens permitted by Section 7.01 and (ii) Dispositions of property by the Borrower or a Restricted Subsidiary pursuant to the Net Cash Proceeds of such Dispositionsale-leaseback transactions;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01Dispositions of Cash Equivalents;
(ig) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary leases, subleases, licenses or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof sublicenses (including any discount and/or forgiveness thereofthe provision of software under an open source license), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) each case in the ordinary course of business;
(h) transfers of property subject to Casualty Events;
(i) Dispositions not otherwise permitted under this Section 7.05; provided that (A) the Borrower or Restricted Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value (such fair market value to be determined in good faith by the Borrower at the time of contractually agreeing to such Disposition) and (B) with respect to any Disposition pursuant to this clause (i) for a purchase price in excess of $75,000,000, the Borrower or any of the Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents); provided, however, that for the purposes of this clause (i), the following shall be deemed to be cash:
(A) any liabilities (as shown on Holdings’, the Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that (x) are assumed by the transferee with respect to the applicable Disposition or (y) that are otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to the Borrower or its Restricted Subsidiaries) and, in each case, for which the Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing,
(vB) Dispositions any securities, notes or other obligations received by the Borrower or the applicable Restricted Subsidiary from such transferee that are converted by such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash and/or or Cash EquivalentsEquivalents received) within 180 days following the closing of the applicable Disposition,
(viC) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to the Borrower or any Restricted Subsidiary), to the extent that the Borrower and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition and
(D) (i) any termination Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, as determined by the Borrower in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (D) that is at that time outstanding, not in excess of 5.0% of Total Assets at the time of the receipt of such Designated Non-Cash Consideration, (ii) any Investment received by the Borrower or a Restricted Subsidiary that is treated as an Investment pursuant to Section 7.02(k), (o) or (p) or (iii) any Investment that the Borrower shall designate, solely for the purposes of this Section 7.05(i) as a Restricted Payment pursuant to Section 7.06(n), in each case with the fair market value of each item of Designated Non-Cash Consideration, Investment or Restricted Payment being measured at the time received and without giving effect to subsequent changes in value;
(j) Dispositions listed on Schedule 7.05(j) (“Scheduled Dispositions”);
(k) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(l) Dispositions, discounts or forgiveness of accounts receivable in connection with the collection or compromise thereof;
(m) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(n) to the extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by the Borrower or any of its Restricted Subsidiaries that is not in contravention of Section 7.07;
(o) the unwinding of any lease in the ordinary course Swap Contract;
(p) any Disposition of business and Securitization Assets to a Securitization Subsidiary;
(iiq) any surrender or waiver of contractual contract rights or the settlement, release or surrender of contractual contract rights or other litigation claims (including in tort) in the ordinary course of business,;
(viir) Dispositions the issuance of property subject directors’ qualifying shares and shares issued to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),foreign nationals as required by applicable law; and
(viiis) Dispositions made the sale or discount of inventory, accounts receivable or notes receivable in the ordinary course of business or the conversion of accounts receivable to comply with notes receivable. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent shall be authorized to take any actions deemed appropriate in order of any Governmental Authority or any applicable requirement of Lawto effect the foregoing.
Appears in 2 contracts
Samples: Amendment and Restatement Agreement (Sabre Corp), Amendment and Restatement Agreement (Sabre Corp)
Dispositions. Make any Disposition or enter into any agreement (other than Dispositions permitted pursuant to make any DispositionSections 7.01, 7.04 and 7.06), except:
(a) Dispositions of obsolete surplus, obsolete, used or worn out property or other property determined by Borrower to that, in the reasonable judgment of the Borrower, is no longer be necessary useful in the its business (but excluding any real property);
(b) Dispositions of inventory, equipment or operations of Borrower or its Subsidiaries or JV Subsidiaries, whether now owned or hereafter acquired, accounts receivable in the ordinary course of business;
(b) Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;
(c) Dispositions of inventory cash and Cash Equivalents pursuant to transactions permitted under this Agreement (including pursuant to Section 7.02) or otherwise in the ordinary course of business;
(d) Dispositions of equipment or non-core assets in the ordinary course of business to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(eA) Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)
(i) with respect to the Net Cash Proceeds of such Disposition;
(f) To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;
(i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and
(h) Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:
(i) Dispositions in the ordinary course of business of (A) defaulted receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,
(ii) Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),
(iii) Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,
(iv) leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,
(v) Dispositions of cash and/or Cash Equivalents,
(vi) (i) any termination of any lease in the ordinary course of business and (B) Dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceeding;
(e) licensing, sublicensing and cross-licensing arrangements involving any technology or other intellectual property of the Borrower or any Restricted Subsidiary in the ordinary course of business or lapse or abandonment of intellectual property rights in the ordinary course of business that, in the reasonable judgment of the Borrower, is no longer useful in its business;
(f) Permitted Asset Swaps;
(A) the 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 and (B) any lease, sublease or license of assets (with a Loan Party as the lessor, sublessor or licensor) in the ordinary course of business;
(i) transfers of condemned property as a result of the exercise of “eminent domain” or other similar policies or (ii) transfers of properties to the extent that such property has been subject to a casualty event for which the Loan Parties or a creditor with a Lien on such property that is permitted hereunder have received (or have not been denied) insurance proceeds or condemnation awards;
(i) other Dispositions, if (i) the Net Proceeds therefrom are applied in accordance with Section 2.03(b) and (ii) immediately after giving effect to such Disposition, (A) no Event of Default has occurred and is continuing, (B) the consideration received for such Disposition shall be in an amount at least equal to the fair market value thereof as reasonably determined by the Borrower in good faith, and (C) at least 75% of the consideration for such Dispositions undertaken pursuant to this Section 7.05(i) shall be paid in cash or Cash Equivalents, provided that, solely for purposes of this provision, each of the following shall be deemed to be cash:
(1) any securities, notes, other obligations or assets received by the Borrower or any Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of the receipt thereof, to the extent of the cash or Cash Equivalents received in that conversion;
(2) any reclamation, employment related or any other liabilities of the Borrower or any Restricted Subsidiary (other than contingent liabilities) that are assumed by the transferee of any such assets and as a result of which the Borrower or such Restricted Subsidiary is released from further liability; and
(3) any Designated Non-Cash Consideration received by the Borrower or any of its Restricted Subsidiaries in such Disposition; provided that (1) the aggregate fair market value of such Designated Non-Cash Consideration, as reasonably determined by the Borrower in good faith, taken together with the fair market value at the time of receipt of all other Designated Non-Cash Consideration received pursuant to this clause (3) minus (2) the amount of Net Proceeds previously realized in cash from prior Designated Non-Cash Consideration shall not exceed $10,000,000;
(j) any Investment permitted pursuant to Sections 7.02(j), 7.02(k) or 7.02(l), which constitutes a Disposition so long as the Net Proceeds therefrom are applied, to the extent required, in accordance with Section 2.03(b);
(k) Dispositions of Excluded Assets and other Dispositions that do not constitute Asset Sales;
(l) to the extent allowable under Section 1031 of the Code, or any comparable or successor provision, any like kind exchange of property for use in a Similar Business;
(m) (i) any surrender or waiver of contractual rights or the settlement, release release, or surrender of contractual rights or other litigation claims (including in tort) in the ordinary course of business,business or (ii) any settlement, discount, write off, forgiveness, or cancellation of any Indebtedness owing by any present or former directors, officers, or employees of the Borrower or` any Restricted Subsidiary or any of their successors or assigns;
(viin) Dispositions the unwinding or termination of any Hedging Obligations; and
(o) the sale of assets by the Borrower and its Restricted Subsidiaries consisting of real property subject solely to foreclosure, casualty, eminent domain or condemnation proceedings the extent that (including i) such Real Property is not necessary for the normal conduct of operations of the Borrower and its Restricted Subsidiaries and (ii) the Net Proceeds therefrom are applied in lieu thereof accordance with Section 2.03(b). To the extent the Required Lenders waive the provisions of this Section 7.05 with respect to the Disposition of any property or any similar proceedingproperty is Disposed of as permitted by this Section 7.05, such property (unless sold, transferred or otherwise disposed of to a Loan Party) shall be Disposed of free and clear of the Liens created by the Security Documents, and the Administrative Agent and/or the Collateral Agent shall take all actions reasonably requested by the Borrower to effect the foregoing as set forth in Section 10.19(b),
(viii) Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Law.
Appears in 2 contracts
Samples: Credit Agreement (Contura Energy, Inc.), Credit Agreement (Contura Energy, Inc.)